Smith v. DiRosa , 120 F.3d 265 ( 1997 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-31185
Summary Calendar
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RUSTY SMITH
Plaintiff-Appellant,
versus
LOUIS A. DiROSA, Judge, Orleans Civil District
Court Division “D”
Defendant-Appellee.
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Appeal from the United States District Court
For the Eastern District of Louisiana
(95-CV-4069-N)
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August 18, 1997
On Motion for Sanctions
Before POLITZ, Chief Judge, KING and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
On June 27, 1997 this court issued an opinion affirming the dismissal of Rusty
Smith’s section 1983 action against Orleans Parish Civil District Court Judge Louis
*
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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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.
DiRosa on the basis of judicial immunity. Judge DiRosa now seeks sanctions under
Rule 381 for a frivolous appeal.
A focused review of the record and briefs persuades that Smith should be
sanctioned for a frivolous appeal. Throughout these proceedings he declined to seek
the advice of counsel despite the recommendations of the magistrate judge. Opposing
counsel noted controlling law. Notwithstanding, Smith proceeded with an appeal
which had no reasonably arguable merit. The report and opinion of the magistrate
judge pointedly demonstrated the failings of his case and clearly articulated the
prevailing and dispositive law. As we have stated, sanctions “‘are merited for a
frivolous appeal the result of which is obvious from the comprehensive and decisive
exposition of the law by the judge below.’”2
As reflected in the panel opinion, Smith had to establish nonjudicial acts
supporting his claim or demonstrate that Judge DiRosa wholly lacked jurisdiction over
the probate proceedings in issue. Smith’s only viable allegation is that his brother’s
chapter 13 bankruptcy case was pending and that pendency divested Judge DiRosa of
jurisdiction. Smith maintained in his briefing to this court that the bankruptcy judge had
signed an order reopening his brother’s chapter 13 case. He cited a copy of a motion
1
Fed.R.App.P. 38.
2
Pillsbury Co. v. Midland Enters., Inc., 904 F.2d 317, 318 (5th Cir. 1990)
(quoting Coghlan v. Starkey, 852 F.2d 806, 810 (5th Cir. 1988)).
to reopen the bankruptcy case. The bankruptcy judge’s signature is on that motion but
only to certify that the motion was filed. The motion was denied and the record leaves
no doubt whatever that it was denied. Although Smith may lack formal training in the
law, the federal rules of civil and appellate procedure require him to at least read the
record and honestly report its factual contents.
Rule 38 provides that when a court of appeals determines that an appeal is
frivolous, it may award just damages and single or double costs to the appellee.
Counsel for Judge DiRosa has submitted a detailed accounting of the costs incurred in
defending this frivolous appeal. That accounting totals $2202.49. We find this modest
sum an eminently reasonable and just sanction.
Defendant-appellee’s Motion for Sanctions in the amount of $2202.49 is
therefore GRANTED.