G. Thomas v. Carl Mathenia, et al

Filing

UNPUBLISHED OPINION ORDER FILED. [09-11054 Dismissed as Frivolous] Judge: JLW , Judge: ECP , Judge: PRO. Mandate pull date is 10/05/2010; denying motion to proceed IFP filed by Appellant Mr. G. Von Thomas [6419443-2] [09-11054]

G. Thomas v. Carl Mathenia, et al

Doc. 0

Case: 09-11054

Document: 00511232829

Page: 1

Date Filed: 09/14/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-11054 S u m m a r y Calendar September 14, 2010 Lyle W. Cayce Clerk

I n the Matter of: MUT A. ASHERU, DEBTOR ----------------------G . VON THOMAS, Appellant, v. C A R L MATHENIA; PAUL A. SCOTT, A p p e lle e s .

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 3:09-CV-977

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* G . Von Thomas, proceeding pro se, moves to proceed in forma pauperis (I F P ) on appeal from the district court's dismissal of his appeal from the b a n k r u p t c y court's order granting a motion to dismiss Thomas's motion for

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Dockets.Justia.com

Case: 09-11054

Document: 00511232829 Page: 2 No. 09-11054

Date Filed: 09/14/2010

s a n c t io n s and contempt against Paul A. Scott and Carl Mathenia, in his capacity a s a personal representative of a probate estate, and imposing sanctions of a t t o r n e y 's fees against Thomas in the amount of $2,450. T h e bankruptcy court, in recommending the denial of the motion to p r o c e e d IFP on appeal, determined that Thomas's underlying motions were f r i v o l o u s . In dismissing his motion for sanctions and contempt and imposing s a n c t io n s , the bankruptcy court noted that Thomas had no interest in property t h a t was part of the bankruptcy estate and that he had abused the judicial p r o c e s s in order to interfere with state court eviction proceedings. The district c o u r t adopted the finding of the bankruptcy court that Thomas's appeal was not t a k e n in good faith because his motion for sanctions and contempt filed in the b a n k r u p t c y proceeding was frivolous. The district court also agreed that the s a n c t i o n s were warranted against Thomas because he had abused the judicial p r o c e s s . The bankruptcy court had the inherent power to impose the sanctions. See 11 U.S.C. § 105; Chambers v. Nasco, 501 U.S. 32, 48-50 (1991). T h o m a s has not briefed his claim that the district court erred in referring t h e IFP motion to the bankruptcy court for the preparation of a report and r e c o m m e n d a t io n and, thus, it is abandoned. See Yohey v. Collins, 985 F.2d 222, 2 2 4 -2 5 (5th Cir. 1993). I n s o fa r as Thomas asserts that counsel Scott was not authorized to file p l e a d in g s , the record reflects that the bankruptcy court authorized him to r e p r e s e n t Mathenia, in his capacity as a personal representative of the estate, fo r the limited purpose of presenting the motion to lift the automatic stay. T h o m a s had no standing to complain about the lack of notice of the motion t o lift the automatic stay because he did not demonstrate that he had an interest in any property involved in the bankruptcy proceeding and did not make an a p p e a r a n c e in the proceeding prior to the stay being lifted. See N.D. TEX. L.B.R. 4 0 0 1 -1 (a )(1 ).

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Case: 09-11054

Document: 00511232829 Page: 3 No. 09-11054

Date Filed: 09/14/2010

T h o m a s 's complaints about the bankruptcy court clerk's docketing p le a d i n g s several days after they were filed or ruled upon does not raise a n o n fr iv o lo u s issue on appeal. B e c a u s e the bankruptcy court's denial of Thomas's motion for sanctions a n d contempt and the imposition of sanctions against Thomas do not raise issues o f arguable merit, the district court did not err in determining that the appeal w a s not taken in good faith. The motion to proceed IFP on appeal is denied, and t h e appeal is dismissed as frivolous. See 5TH CIR. R. 42.2; Baugh v. Taylor, 117 F .3 d 197, 202 n.24 (5th Cir. 1997). I F P MOTION DENIED; APPEAL DISMISSED.

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