Sparkman v. Charles Schwab & Co. , 336 F. App'x 413 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 10, 2009
No. 08-11137
c/w No. 08-10313 Charles R. Fulbruge III
Summary Calendar Clerk
GUY SPARKMAN
Plaintiff-Appellant
v.
CHARLES SCHWAB & COMPANY, INC; CYBERTRADER, A Wholly Owned
Subsidiary of Charles Schwab and Company
Defendants-Appellees
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:07-CV-1457
Before SMITH, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Guy Sparkman moves for leave to proceed in forma pauperis (IFP)
following the district court’s certification that his appeal was not taken in good
faith. Sparkman’s civil action was dismissed because Sparkman had failed to
pay a monetary sanction imposed in the Eastern District of Texas.
We previously dismissed Sparkman’s appeal from the same judgment in
appeal no. 08-10313 because Sparkman filed an untimely notice of appeal. It
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-11137 c/w No. 08-10313
now appears that Sparkman filed a timely notice of appeal that was not docketed
by the district court until after the district court received a copy of that notice
of appeal from this court. The district court submitted the timely notice of
appeal to this court to initiate appeal no. 08-11137. In light of this development,
we consolidate appeals no. 08-11137 and 08-10313 and recall the mandate in
case no. 08-10313. See United States v. Boliver, Nos. 08-40648 & 07-40609, 2009
WL 890628 (5th Cir. Mar. 31, 2009) (unpublished).
When a district court certifies that an appeal is frivolous and is not taken
in good faith under 28 U.S.C. § 1915(a)(3) and F ED. R. C IV. P. 24(a)(3), a litigant
may either pay the filing fee or challenge the district court’s certification decision
by filing a motion for leave to proceed IFP in this court. Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997). The motion “must be directed solely to the trial
court’s reasons for the certification decision.” Id. This court may authorize a
litigant to proceed IFP on appeal if he demonstrates that he is a pauper and that
his appeal is taken in good faith, i.e., the appeal presents nonfrivolous issues.
Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). This court’s inquiry into the
litigant’s good faith “is limited to whether the appeal involves ‘legal points
arguable on their merits (and therefore not frivolous).’” Howard v. King, 707
F.2d 215, 220 (5th Cir. 1983) (citation omitted). If the court upholds the district
court’s certification that the appeal is not taken in good faith and the litigant
persists in the appeal, he must pay the appellate filing fee or the appeal will be
dismissed for want of prosecution. Baugh, 117 F.3d at 202. If the appeal is
frivolous, this court may dismiss it sua sponte. Id. at 202 n.24; 5 TH C IR. R. 42.2.
Sparkman contends that the district court violated his right of access to
the courts by enforcing the sanction imposed by the Eastern District of Texas
and requiring him to provide documentary proof that he had paid the monetary
sanction before allowing him to proceed. He further contends that he was
deprived of due process because his action was dismissed without giving him
notice and an opportunity to be heard. He also contends that the district court
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relied on hearsay outside of the record, as there were no sanction orders from the
Eastern District of Texas or from this court in the record.
The dismissal of a suit for failure to comply with an earlier sanction order
is reviewed for an abuse of discretion. Gelabert v. Lynaugh, 894 F.2d 746, 747-48
(5th Cir. 1990). Moreover, the district court may enforce a sanction order
imposed by another court, Balawajder v. Scott, 160 F.3d 1066, 1067-68 (5th Cir.
1998), and the enforcement of sanction orders does not deprive a litigant of his
right of access to the courts. See Lewis v. Casey, 518 U.S. 343, 355-56 (1996).
One court may take judicial notice of another district court’s judicial
actions. Gray ex rel. Rudd v. Beverley Enters. Miss., Inc., 390 F.3d 400, 408 n.7
(5th Cir. 2004). The district court correctly took judicial notice of Sparkman’s
easily obtainable record of litigation in the Eastern District and the unpaid
sanctions imposed on him in that district. The district court also correctly took
judicial notice of Sparkman’s record of litigation in this court and the sanctions
we imposed on him.
As for notice and an opportunity to be heard, the relevant sanction already
had been imposed by the Eastern District and approved of by this court. The
district court was not imposing any new sanction on Sparkman; there was no
need to warn Sparkman or allow him to challenge the sanction. Moreover, by
the time he filed suit in the Northern District, lawsuits had been dismissed in
the Eastern District and appeals had been dismissed pursuant to sanction
orders. Sparkman was on notice that his legal actions and appeals could be
dismissed pursuant to sanction orders. Additionally, the district court ordered
that Sparkman not be allowed to file any pleadings other than notices of appeal
until he provided documentary proof that he had paid his monetary sanctions.
Had Sparkman provided such documentary proof when he filed his complaint,
he presumably would have been allowed to proceed undeterred. Sparkman
received due process. See Merriman v. Sec. Ins. Co., 100 F.3d 1187, 1192 (5th
Cir. 1996).
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No. 08-11137 c/w No. 08-10313
Sparkman contends that the district court erred by relying on unpublished
opinions and on opinions in which the facts differed materially from the facts of
his case. The district court’s analysis was correct, whether it cited to published
or unpublished opinions, and unpublished opinions may be persuasive if not
precedential. See Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006).
Moreover, because the district court’s analysis was correct, whether it cited to
cases with facts differing from Sparkman’s case is irrelevant.
Sparkman’s appeals are without arguable merit and are frivolous. See
Howard, 707 F.2d at 220. His IFP motion is denied and the appeals are
dismissed as frivolous. See 5 TH C IR. R. 42.2.
APPEALS NO. 08-11137 & 08-10313 CONSOLIDATED; IFP DENIED;
APPEALS DISMISSED.
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