G. Thomas v. Carl Mathenia, et al

Filing

UNPUBLISHED OPINION ORDER FILED. [09-11058 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 [6419459-2] [09-11058]

G. Thomas v. Carl Mathenia, et al

Doc. 0

Case: 09-11058

Document: 00511232731

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 . 09-11058 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-979

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 denying his motion to disqualify counsel Donald R.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-11058

Document: 00511232731 Page: 2 No. 09-11058

Date Filed: 09/14/2010

R e c t o r and his law firm, Glast, Phillips, & Murray, P.C., from representing Paul A . Scott and Carl Mathenia, in his capacity as an estate representative, in the b a n k r u p t c y proceedings of Mut A. Asheru. 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 fr iv o lo u s and that his appeal was not taken in good faith. The bankruptcy court n o te d that Thomas had no interest in property that was part of the bankruptcy e s t a t e and that he used someone else's bankruptcy proceeding to interfere with s t a t e court eviction proceedings. The district court adopted the finding of the b a n k r u p t c y court that Thomas's appeal was not taken in good faith and d is m is s e d the appeal pursuant to 28 U.S.C. § 1915(e)(2). T h o m a s has not provided any argument to support his assertion that c o u n s e l Rector and his firm should have been disqualified from representing S c o tt and Mathenia based on a conflict of interest. Thus, he has abandoned the issue raised by his appeal. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1 9 9 3 ). Nor has Thomas briefed his claim that the district court erred in

r e fe r r in g the IFP motion to the bankruptcy court for the preparation of a report a n d recommendation. Therefore, this issue is also abandoned. See id. I n s o fa r as Thomas asserts that counsel Scott was not authorized to file p le a d in g s , the record reflects that the bankruptcy court authorized Scott 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 he 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: 09-11058

Document: 00511232731 Page: 3 No. 09-11058

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 to disqualify R e c t o r and his law firm and his other arguments do not raise an issue of a r g u a b le merit, the district court did not err in determining that the appeal was n o t taken in good faith. The motion to proceed IFP on appeal is denied, and the a p p e a l is dismissed as frivolous. See 5TH CIR. R. 42.2; Baugh v. Taylor, 117 F.3d 1 9 7 , 202 n.24 (5th Cir. 1997). I F P MOTION DENIED; APPEAL DISMISSED.

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