Sparkman v. American Bar Assn ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40211
Summary Calendar
GUY EDWIN SPARKMAN,
Plaintiff-Appellant,
versus
AMERICAN BAR ASSOCIATION ET AL.,
Defendants,
AMERICAN BAR ASSOCIATION; TEXAS BAR ASSOCIATION; SMITH
COUNTY BAR ASSOCIATION; WILLIAM JEFFERSON CLINTON, President
of the United States of America; JANET RENO, U.S. Attorney
General; GEORGE BUSH, JR., Governor, State of Texas; JOHN
CORNYN, Texas Attorney General; CAROLYN KING, Judge, Fifth
Circuit Court of Appeals; HENRY A. POLITZ, Judge, Fifth
Circuit Court of Appeals; EDITH JONES, Judge, Fifth
Circuit Court of Appeals; JERRY SMITH, Judge, Fifth Circuit
Court of Appeals; ROBERT M. PARKER, Judge, Fifth Circuit Court
of Appeals; WILLIAM M. STEGER, U.S. District Judge,
Eastern District of TX; JUDITH GUTHRIE, U.S. Magistrate
Judge, Eastern District of TX; THOMAS PHILLIPS, SR., Judge,
Supreme Court of TX; MIKE MCCORMICK, Judge, TX Criminal
Court of Appeals; PAT MCDOWELL, Judge, 1st Administrative
Judicial District of TX; ROBY HADEN, Associate Justice;
CHARLES HOLCOMB, Ex-Associate Justice; JOHN BERRY; UNKNOWN
PARTY, DR., Other unknown parties in the various courts mentioned
herein; TOM B. RAMEY, JR., Chief Justice of the 12th
Court of Appeals of TX; WILLIAM J. CORNELIUS, Justice, 6th
Appellate District; BEN Z. GRANT, Justice, 6th Appellate
District; DONALD ROSS, Justice, 6th Appellate District; TIBBY
HOPKINS, Clerk of Court of Appeals of TX, 6th Appellate District,
Defendants-Appellees,
--------------------
Appeal from the United States District Court
for1 the Eastern District of Texas
USDC No. 2:99-CV-182
--------------------
November 21, 2001
No. 00-40211
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Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Guy Edwin Sparkman appeals from the dismissal of his civil-
rights action for failure to state a claim. Sparkman contends
that the magistrate judge was unauthorized to issue a report and
recommendation; that the district court erred by disposing his
action before the American Bar Association (ABA), an
indispensible party, made an appearance and filed an answer; that
the district court violated various constitutional rights by
dismissing his action prematurely; that the district court erred
by dismissing his action for failure to state a claim; and that
the district judge failed to review the magistrate judge’s report
and recommendations de novo.
Sparkman seeks relief based on actions in both criminal and
civil actions. To the extent he seeks damages in an attempt to
undermine his state-court convictions, he has no cause of action
until he can show that his convictions have been invalidated.
Heck v. Humphrey, 512 U.S. 477, 489 (1994).
Sparkman’s contention regarding the magistrate judge’s
authorization is without a basis in law. The magistrate judge
was authorized to issue a report and recommendations for the
district court’s consideration once the district court referred
the case to him. 28 U.S.C. § 636(b)(1)(B).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 00-40211
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Sparkman’s contention regarding the dismissal of his action
before the ABA could appeal and answer lacks a factual basis –-
the ABA already was named as a defendant and did not need to be
brought in through FED. R. CIV. P. 19, which provides for joinder
of indispensible parties. Sparkman does not argue why any
response by the ABA was necessary for the district court to
dispose of his action, and it is not apparent from the record why
any response would be necessary.
Sparkman argues in some detail that the district court
deprived him of his right of access to the courts and his right
to a jury trial when dismissing his action. He argues in
conclusional fashion that the district court violated his rights
by dismissing the action without notice, without any motions,
without hearings, without evidence, and without giving him an
opportunity to amend.
Aside from his access-to-courts and jury-trial contentions,
Sparkman does not argue his issues beyond merely stating them.
See id. He has failed to brief the issues for appeal. Brinkmann
v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987).
Sparkman relies on adverse judicial rulings for his
contention that he has been deprived of access to the courts. He
has not shown that he was deprived of his access to the courts.
See Bounds v. Smith, 430 U.S. 817, 828 (1977).
Sparkman has not shown that there were factual issues
requiring findings by a jury. Dismissal of his action pursuant
to Rule 12(b)(6) therefore did not violate his Seventh Amendment
No. 00-40211
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right to a jury trial. Davis v. United States Government, 742
F.2d 171, 173 (5th Cir. 1984)(summary-judgment case).
Sparkman contends that the district court erred by
dismissing his action for failure to state a claim and that he
should have been allowed to amend his complaint before it was
dismissed. He argues that the district court had power to grant
relief against Texas and Federal officials; that he could have
proved his RICO claims if given the chance; that the Texas
Transportation Code is unconstitutional; and that his
incarceration based on a void capias was illegal.
Sparkman provides no factual allegations to support his
contentions, apart from his allegation that the Clerk of Court
signed the capias and that the visiting judge who presided over
the case refused to do so because the charge, the trial, and the
appellate opinion in the case were fraudulent. He has failed to
brief his issues for appeal. Brinkmann, 813 F.2d at 748.
A clerk of court may sign a capias following a decision of a
Texas appellate court. See TEX. R. APP. P. 51.2(b)(1); see, e.g.,
Ex Parte Lopez, 988 S.W.2d 788, 789 (Tex. App. 1999). Sparkman’s
contention therefore is unavailing.
Sparkman’s contention that the district court erred by
failing to conduct a de novo review is without a factual basis.
The district court conducted a de novo review.
Sparkman’s appeal is without arguable merit and therefore is
frivolous. Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
We imposed a monetary sanction on Sparkman in 1994, Sparkman v.
Gwyn, No. 93-4409, slip op. at 3 (5th Cir. Apr. 20, 1994)
No. 00-40211
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(unpublished); it is unclear whether he has paid that sanction.
Sparkman was warned in 1995 “not to tax this court’s patience
with any other frivolous filings.” Sparkman v. Skeen, No. 94-
41142, slip op. at 2 (5th Cir. Mar. 29, 1995)(unpublished). We
impose a monetary sanction of $100 on Sparkman, payable to the
clerk of this court, for pursuing this frivolous appeal. We warn
Sparkman that if he continues to file frivolous pleadings in this
court or in the district court, he will be sanctioned
additionally, including a restriction on the filing of pleadings.
APPEAL DISMISSED. 5TH CIR. R. 42.2. SANCTION IMPOSED.