Thomas, Kevin v. Foster, Harry W. , 138 F. App'x 822 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 9, 2005*
Decided May 9, 2005
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 05-1012
KEVIN THOMAS, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Indian, Fort Wayne Division
v.
No. 1:04-CV-212
HARRY W. FOSTER III and
SANDRA MICHELLE REID, Theresa L. Springmann,
Defendants-Appellees. Judge.
ORDER
After change-of-custody proceedings in Allen Circuit Court, Kevin Thomas
brought this suit under 42 U.S.C. § 1983 against Sandra Reid, the mother of his
child; Harry Foster, her attorney; and the state court judge who presided over the
case, essentially claiming that they had conspired to deny him due process. He
sought declaratory relief and $950,000 in damages. The district court dismissed the
judge based on principles of immunity and the Rooker-Feldman doctrine, which
precludes federal subject matter jurisdiction over claims that seek review of a state
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-1012 Page 2
court’s decision. Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923); D.C. Court
of Appeals v. Feldman, 460 U.S. 462, 482 (1983); see Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 125 S.Ct. 1517, 1521-22 (2005). The court then gave Thomas
leave to amend his complaint to state any claims against the remaining defendants
that did not seek review and rejection of the state court’s judgment. After
determining that the amended complaint failed to do so, the district court dismissed
the case for lack of subject matter jurisdiction under the Rooker-Feldman doctrine.
Thomas’s brief is so deficient that we have no choice but to dismiss the
appeal under Fed. R. App. P. 28(a)(9). Under Rule 28, a brief “must contain an
argument consisting of more than a generalized assertion of error, with citations to
supporting authority.” Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001).
Even pro se litigants must submit briefs from which we can “discern cogent
arguments.” Id. Thomas’s appellate brief largely restates the allegations in his
complaint; he does not even refer to the district court’s order or to the Rooker-
Feldman doctrine. Thomas simply makes no argument as to how the district court
erred. The appeal is therefore dismissed.
The appellees have moved for sanctions against Thomas under Fed. R. App.
P. 38, arguing that he filed a meritless appeal for the purpose of depleting Reid’s
financial resources and harassing her. In considering a motion for sanctions, we
must determine whether the appeal is frivolous, and if so, whether sanctions are
appropriate. Ins. Co. of the West v. County of McHenry, 328 F.3d 926, 929 (7th Cir.
2003). An appeal is “frivolous” if it is so meritless that the result is foreordained.
See Jimenez v. Madison Area Tech. Coll., 321 F.3d 652, 658 (7th Cir. 2003); Mars
Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 938 (7th Cir. 1989). Although
Thomas’s appeal is indeed frivolous, apart from his deficient brief we see little
evidence of bad faith, see Depoister v. Mary M. Holloway Found., 36 F.3d 582, 588
(7th Cir. 1994); Reid v. United States, 715 F.2d 1148, 1155 (7th Cir. 1983), such
that sanctions would be appropriate. And as pro se litigant in a civil case, Thomas
is entitled to some leniency before being assessed sanctions for frivolous litigation.
See Pryzina v. Ley, 813 F.2d 821, 823-24 (7th Cir. 1987); see also Bacon v. AFSCME
Council #13, 795 F.2d 33, 34-5 (7th Cir. 1986). However, we warn him that any
future frivolous appeals will result in sanctions.
The motion for sanctions is DENIED and the appeal is hereby DISMISSED.