Shelly Sanders v. Rockey Wright ( 2018 )

Case: 17-41027 Document: 00514600419 Page: 1 Date Filed: 08/15/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-41027 FILED
Summary Calendar August 15, 2018
Lyle W. Cayce
Clerk
SHELLY N. SANDERS; KEN PAXTON; S. A. W., a Child,
Plaintiffs - Appellees
v.
ROCKEY D. WRIGHT,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:17-CV-131
Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Rockey D. Wright, proceeding pro se, challenges the district court’s
denying his motion for relief following its remanding his child-custody action
to state court after Wright removed it, pursuant to 28 U.S.C. § 1443. Wright
claims the action was removable because he “is denied or cannot enforce” his
constitutional rights in state court. 28 U.S.C. § 1443(1).
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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No. 17-41027
Although a remand order in a removed case is ordinarily not appealable,
such an order is appealable if the action was removed pursuant to 28 U.S.C.
§ 1443, which permits removal in cases where constitutional rights cannot be
enforced in state court. 28 U.S.C. § 1447(d); Robertson v. Ball, 534 F.2d 63, 66
(5th Cir. 1976). On the other hand, “the timely filing of a notice of appeal in a
civil case is a jurisdictional requirement”. Bowles v. Russell, 551 U.S. 205, 214
(2007). An appellant has 30 days from “entry of the judgment or order
appealed from” or the disposition of a timely post-judgment motion to file a
notice of appeal. Fed. R. App. P. 4(a)(1)(A) & (4)(A).
Along that line, Wright filed a Federal Rule of Civil Procedure 59(e)
motion to alter or amend the judgment 31 days after the court entered its
remand order, past the 28-day motion deadline. Fed. R. Civ. P. 59(e). Wright’s
untimely Rule 59(e) motion became, in substance, a motion for relief under
Rule 60(b). Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665,
667 (5th Cir. 1986) (en banc) (“If . . . the motion asks for some relief other than
correction of a purely clerical error and is served after the ten-day limit, then
Rule 60(b) governs its timeliness and effect.”). Wright’s notice of appeal is
timely, therefore, only as to the denial of his Rule 60(b) motion and not the
remand order. “We review the denial of a Rule 60(b) motion for abuse of
discretion.” Clark v. Davis, 850 F.3d 770, 778 (5th Cir. 2017).
The court did not abuse its discretion in denying relief because Wright’s
challenge to the remand order is frivolous. Removal pursuant to 28 U.S.C.
§ 1443 is proper only for cases involving “a limited category of [constitutional]
rights, specifically defined in terms of racial equality”. Georgia v. Rachel, 384
U.S. 780, 791 (1966) (emphasis added); Robertson, 534 F.2d at 66 & n.5.
Recognizing this is a child-custody action, Wright concedes none of his
wide-ranging constitutional claims are based on racial inequality; instead, he
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No. 17-41027
asserts the controlling law is, inter alia: “unconstitutionally repugnant . . .
ridiculously illogical and . . . facially absurd”. Even considering his proceeding
pro se, Wright’s assertions are irrelevant and fail to present a good-faith
contention for removal jurisdiction under 28 U.S.C. § 1443. Accordingly, his
appeal is dismissed as frivolous. Robertson, 534 F.2d at n.5.
Moreover, in this proceeding, Wright accused state judges and
administrators of criminal conspiracy, and insulted the federal magistrate
judge and district judge. “This court simply will not 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, Wright is warned that
future frivolous filings, or filings containing abusive, disparaging, or
contemptuous language, could result in the imposition of monetary sanctions
and limits on his access to the federal courts. Fed. R. App. P. 38; Goodyear Tire
& Rubber Co. v. Haeger, 137 S. Ct. 1178, 1186 (2017) (“Federal courts possess
certain inherent powers, [including imposing sanctions,] not conferred by rule
or statute, to manage their own affairs so as to achieve the orderly and
expeditious disposition of cases.” (internal quotation marks omitted)).
DISMISSED; WARNING ISSUED.
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