Harmon Taylor v. City of Sherman ( 2019 )

Case: 18-40272 Document: 00515025583 Page: 1 Date Filed: 07/08/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-40272 FILED
Summary Calendar July 8, 2019
Lyle W. Cayce
Clerk
HARMON L. TAYLOR,
Plaintiff-Appellant
v.
CITY OF SHERMAN, a Municipal Corporation; BRANDON SHELBY, City
Attorney, officially and individually; CODY SHOOK, Police Officer, officially
and individually; ASSISTING OFFICER, FNU LNU, Police Officer, officially
and individually; ZACHARY FLORES, Chief of Police, officially; BOB UTTER
TOWING, Driver; BOB UTTER TOWING, Driver’s Assistant; MIDWAY
STORAGE FACILITY; WHITNEY BREWSTER, Executive Director, Texas
Department of Motor Vehicles, officially and individually,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:17-CV-488
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Harmon L. Taylor, proceeding pro se, appeals the district court’s sua
sponte dismissal without prejudice of his federal civil rights suit pursuant to
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 18-40272 Document: 00515025583 Page: 2 Date Filed: 07/08/2019
No. 18-40272
Federal Rule of Civil Procedure 41(b) for want of prosecution and failure to
obey the court’s orders. We review for abuse of discretion. Link v. Wabash
R.R. Co., 370 U.S. 626, 633 (1962).
Despite receiving notice of his obligations under court orders, Taylor
failed to participate in an ordered Federal Rule of Civil Procedure 26(f)
attorney conference, failed to appear at the January 19, 2018 Federal Rule of
Civil Procedure 16 management conference, and failed to appear at the
subsequent February 1, 2018 show cause hearing as ordered. Taylor’s refusal
to participate in the case was based on his incorrect belief that the referral to
the magistrate judge (MJ) for pretrial proceedings was unlawful without his
consent. We have held that a litigant’s consent is not required prior to referral
before a MJ where, as here, “the ultimate decision-making authority [is]
retained by the district court.” Jackson v. Cain, 864 F.2d 1235, 1242 (5th Cir.
1989). Dismissal for failure to prosecute and comply with court orders under
these facts was not an abuse of discretion. See FED. R. CIV. P. 41(b);
McCullough, 835 F.2d at 1127.
Appellees City of Sherman, Bob Utter Towing, and Midway Storage
Facility contend that they are entitled to recover costs and attorney’s fees
against Taylor in light of our previous sanction warning against Taylor in
Taylor v. Hyde, 396 F. App’x 116, 117 (5th Cir. 2010). These appellees fail to
show entitlement to compensatory sanctions. Fleming & Assocs. v. Newby &
Tittle, 529 F.3d 631, 639 (5th Cir. 2008).
However, Taylor’s brief does contain numerous instances of
inflammatory and derogatory language directed toward law enforcement in
general and the United States District Court for the Eastern District of Texas
and its judges in particular, in violation of our prior order. While a pro se
litigant’s pleadings are entitled to liberal construction, we “simply will not
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No. 18-40272
allow liberal pleading rules and pro se practice to be a vehicle for abusive
documents.” Theriault v. Silber, 579 F.2d 302, 303 (5th Cir. 1978).
Accordingly, sanctions are imposed against Taylor in the amount of
$500, payable to the Clerk of this court. See Coghlan v. Starkey, 852 F.2d 806,
808 (5th Cir. 1988). Taylor is barred from filing any pro se civil appeal in this
court or any pro se initial civil pleading in any court which is subject to this
court’s jurisdiction, without the advance written permission of a judge of the
forum court or of this court, until the sanction is paid in full. See id. Taylor is
also cautioned that any future filings containing abusive, disparaging and
contemptuous language may result in the imposition of further sanctions,
including further restrictions on his ability to file appeals or pleadings in this
court or in any court which is subject to this court’s jurisdiction.
AFFIRMED; SANCTIONS IMPOSED.
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