Prewitt v. Greenville, MS ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60266
Summary Calendar
GEORGE DUNBAR PREWITT, JR, in his
own right and on behalf of his minor
son RAP, Ex Relator State of Mississippi,
Plaintiff-Appellant,
versus
CITY OF GREENVILLE, MISSISSIPPI; MIKE
MOORE, Mississippi Attorney General,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Mississippi
(4:97-CV-11-B-D)
November 16, 1999
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Prewitt filed this suit in Mississippi
state court alleging violations of state and federal law. The
defendants-appellees removed this case to the district court on the
ground that Prewitt asserted claims arising under federal law,
including an employment discrimination claim and a claim for
injunctive relief to alter the eastern boundary of the State of
*
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this opinion should not be published and is not precedent except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.
Mississippi. The district court dismissed Prewitt's suit without
prejudice.
In one of Prewitt's previous lawsuits, the district court
awarded attorney's fees to the adverse party and sanctioned
Prewitt. See Prewitt v. Alexander, No. 96-60220 (5th Cir. April
28, 1997)(per curiam), cert. denied, 118 S.Ct. 859 (1998). The
court's sanctions included barring him from filing any more
lawsuits in the Northern District of Mississippi without the
court's permission. In the case at bar, the court enforced the
sanction by ordering Prewitt to find counsel to represent him
within thirty days or face dismissal of his suit. In an
interlocutory appeal, Prewitt argued that the order violated his
right to self-representation under the Mississippi Constitution,
and we affirmed the order. See Prewitt v. City of Greenville, 161
F.3d 296, 299 (5th Cir. 1997). When Prewitt failed to comply with
the district court's order, the court dismissed the suit without
prejudice. Prewitt appeals, arguing that removal was improper,
that the application of the sanctions order violates his right to
self-representation under 28 U.S.C. § 1654, and that he has been
unlawfully denied access to the courts. We AFFIRM.
We have jurisdiction to consider this appeal under 28 U.S.C.
§ 1291. A dismissal without prejudice may constitute a final
judgment for purposes of appeal. See, e.g., United States v.
Wallace & Tiernan Co., 336 U.S. 793, 794 n.1 (1949). When a
district court fully disposes of a plaintiff's claims, the court's
order is final even if the dismissal is without prejudice. See
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Linn v. Chivatero, 714 F.2d 1278, 1280 (5th Cir. 1983). Since the
district court's order disposed of Prewitt's claims, the order was
a final one and we have jurisdiction to decide his appeal.
Prewitt challenges the propriety of his suit's removal to
federal court. Prewitt alleged, inter alia, employment
discrimination in the hiring of attorneys by the City of Greenville
in violation of 42 U.S.C. § 2000e et seq. A suit filed in state
court that asserts claims arising under federal law may be removed
to federal court. See 28 U.S.C. § 1441(b). Removal was proper,
since Prewitt's complaint asserted claims based on federal law.
Prewitt argues that the removal of his case was improper because
some of his claims were barred by the 11th Amendment as a result.
When removal is based on the assertion of claims arising under
federal law, an 11th Amendment bar does not preclude removal. See
Wisconsin Dep't of Corrections v. Schacht, 524 U.S. 381, 389-90
(1998). If any of Prewitt's claims were so barred, removal was
still proper.
Prewitt urges that removal was improper because the defendants
failed to file a notice of removal with the state court. The
failure of the removing party to file a notice of removal in the
state court does not defeat the district court's jurisdiction. See
Dukes v. South Carolina Ins. Co., 770 F.2d 545, 547 (5th Cir.
1985). It is of no consequence that the defendants-appellees did
not notify the state court of the removal of the case to federal
court until April 24, 1999, after the district court had issued its
order.
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Prewitt appeals the sanctions order issued in one of his
previous lawsuits that effectively barred him from acting as an
advocate before the Northern District of Mississippi. Prewitt
previously appealed this sanction, and we affirmed district court's
order. See Prewitt v. Alexander, No. 96-60220 (5th Cir. April 28,
1997)(per curiam), cert. denied, 118 S.Ct. 859 (1998). An
unpublished opinion is not precedent, "except under the doctrine of
res judicata, collateral estoppel or law of the case." 5th Cir. R.
47.5.4. The doctrine of res judicata precludes our revisiting a
matter that has previously been resolved by this court. See Bank
One Texas v. United States, 157 F.3d 397, 404 (5th Cir. 1998),
cert. denied, 119 S.Ct. 1761 (1999). As the issue of the
sanction's validity has been decided, we are bound by the decision
of the previous panel.
AFFIRMED.
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