Fernon v. Smajstrala ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-11395
Summary Calendar
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LEE PRICE FERNON,
Plaintiff-Appellant,
versus
ROBIN SMAJSTRALA, ET AL.,
Defendants-Appellees.
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No. 98-10276
Summary Calendar
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LEE PRICE FERNON,
Plaintiff-Appellant,
versus
ROBIN SMAJSTRALA, ET AL.,
Defenants-Appellees.
No. 98-10464
Summary Calendar
LEE PRICE FERNON,
Plaintiff-Appellant,
ROSENDO RODRIGUEZ, JR.,
Appellant,
versus
ROBIN SMAJSTRALA ET AL.,
Defendants-Appellees.
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Appeals from the United States District Court
for the Northern District of Texas
USDC No. 7:97-CV-25-X
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July 15, 1999
Before DAVIS, DUHE’, and PARKER, Circuit Judges.
PER CURIAM:*
Before the court are three consolidated appeals. In No. 97-
11395, Lee Price Fernon appeals from the district court’s summary
judgment in favor of the defendants in his civil rights complaint
brought pursuant to 42 U.S.C. § 1983. Fernon, an attorney,
brought the suit against Baylor County Judge Robin Smajstrala;
Dick Wirz, the mayor of Seymour, Texas; Floyd Burke, the police
chief in Seymour; Mike Griffin, a Seymour police officer; Jo Ann
Farr, a neighbor of Fernon’s; and Lynn Fernon, his ex-wife.
Fernon alleged in his complaint that the defendants conspired to
encourage Fernon’s children to accuse him falsely of physical
abuse so that false criminal charges would be brought against him
which would destroy his career as the county attorney.
We have reviewed the record and the briefs of the parties,
and we hold that the district court did not err in construing the
defendants’ motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(6) as one for summary judgment under Fed. R. Civ. P. 56.
See Young v. Biggers, 938 F.2d 565, 568 (5th Cir. 1991). Nor was
the rule’s ten-day notice requirement violated by the court’s
*
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that this opinion should not be published and is not precedent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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construction because, prior to the hearing on the motions, Fernon
had submitted an affidavit to be considered by the court. See
Washington v. Allstate Ins. Co., 901 F.2d 1281, 1284 (5th Cir.
1990). Because there was no genuine issue of material fact, only
the conclusional allegations of Fernon, the district court did
not err in thereafter granting the defendants’ motion for summary
judgment. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994) (en banc).
In No. 98-10464, we uphold the district court’s award of
attorneys’ fees and its imposition of a monetary sanction against
Fernon and his attorney, Rosendo Rodriguez, Jr. See Thomas v.
Capital Security Services, Inc., 836 F.2d 866, 872 (5th Cir.
1988) (en banc); Vaughner v. Pulito, 804 F.2d 873, 878 (5th Cir.
1986). Nor did the district court err in imposing a sanction
barring Fernon from filing any pleading in the Northern District
of Texas without the prior permission of the district court. See
Pressey v. Patterson, 898 F.2d 1018, 1021 and n.2 (5th Cir.
1990).
Because Fernon fails to make the required showing of
judicial partiality, his challenge to the district court’s denial
of his recusal motion brought under 28 U.S.C. § 455(a) fails.
See United States v. Couch, 896 F.2d 78, 82 (5th Cir. 1990).
Similarly, the district court did not err by denying Fernon’s
motion to disqualify defense attorneys. See In re: American
Airlines, Inc., 972 F.2d 605, 609, 611 (5th Cir. 1992). Finally,
in No. 98-10276, Fernon fails to show that the district court
erred by imposing a $5000 bond pursuant to Fed. R. App. P. 7 in
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order to proceed with his appeal. See Ehm v. Amtrack Bd. of
Directors, 780 F.2d 516, 517 (5th Cir. 1986); Sckolnick v.
Harlow, 820 F.2d 13, 15 (1st Cir. 1987).
Because they are without arguable merit, Nos. 97-11395 and
98-10464 are DISMISSED as frivolous. See Howard v. King, 707
F.2d 215, 219-20 (5th Cir. 1983); 5th Cir. R. 42.2. The district
court’s decision in No. 98-10276 is AFFIRMED.