Karen Williamson v. Joe Walker

Filing 511107281

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Case: 09-20558 Document: 00511107281 Page: 1 Date Filed: 05/11/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-20558 S u m m a r y Calendar May 11, 2010 Lyle W. Cayce Clerk K A R E N WILLIAMSON, P l a in t i f f - A p p e l l a n t v. J O E WALKER, D e fe n d a n t-A p p e lle e A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:09-CV-1399 B e fo r e GARZA, CLEMENT, and OWEN, Circuit Judges. P E R CURIAM:* K a r e n Williamson, proceeding pro se and in forma pauperis (IFP), appeals t h e district court's dismissal of her miscellaneous civil action against Joe Walker w it h o u t prejudice for failure to comply with the court's order to file a more d e f in it e statement. Williamson argues that the district court abused its d is c r e t io n in dismissing her complaint because her complaint was sufficient to c o m m u n i c a t e her desire to get her file from her former attorney. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 09-20558 Document: 00511107281 Page: 2 No. 09-20558 Date Filed: 05/11/2010 T h e district court's dismissal was without prejudice, and there is in s u ffic ie n t information in the record to determine whether Williamson's claim w o u ld be barred by a statute of limitations. A dismissal without prejudice is not a n abuse of discretion in this case. See FED. R. CIV. P. 41(b); McCullough v. L y n a u g h , 835 F.2d 1126, 1127 (5th Cir. 1988). E v e n if the dismissal is considered to be with prejudice, Williamson's a c t io n s in refusing to comply with the district court's order and filing repeated o b je c t io n s insisting that her complaint was sufficient and making disparaging r e m a r k s about the defendant, his attorney, and the district court judge c o n s tit u te a clear record of contumacious conduct warranting dismissal. See B er r y v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992). W illia m s o n 's appeal is without arguable merit and is frivolous. See H o w a r d v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is fr iv o lo u s , it is DISMISSED. See 5TH CIR. R. 42.2. T h e appellee argues that Williamson's appeal is frivolous and asks this c o u r t to award damages and costs pursuant to Federal Rule of Appellate P r o c e d u r e 38. Because the appellee did not file a separate motion, we cannot r u l e on the request at this time. Appellee's request for sanctions is DENIED W I T H O U T PREJUDICE pending the show cause order we issue herein. See F ED. R. APP. P. 38. B a s e d on Williamson's frivolous appeal in this case, and based on her le n g th y history of initiating vexatious litigation in the federal district courts and in this court, which she has repeatedly failed to prosecute, Williamson is hereby O R D E R E D TO SHOW CAUSE why sanctions under Federal Rule of Appellate P r o c e d u r e 38, our inherent power, or any other source of applicable law for filing fr iv o lo u s appeals should not be imposed. Williamson is ordered to file with the C le r k of this court, within fifteen (15) days after the filing of this opinion, a s ta t e m e n t , not to exceed thirty (30) pages, stating her reasons why we should not im p o s e sanctions. Appellee Walker is invited to submit, within the same time 2 Case: 09-20558 Document: 00511107281 Page: 3 No. 09-20558 Date Filed: 05/11/2010 p e r io d , a sworn list of attorneys' fees incurred in connection with the instant a p p e a l, detailing the reasonable hours expended by counsel and reasonable h o u r ly rates charged, plus other direct costs incurred as appellee. A P P E A L DISMISSED AS FRIVOLOUS; APPELLANT ORDERED TO SH O W CAUSE WHY SANCTIONS SHOULD NOT BE IMPOSED; A P P E L L E E 'S REQUEST FOR DAMAGES DENIED WITHOUT PREJUDICE A N D APPELLEE INVITED TO SUBMIT EVIDENCE OF DAMAGES. 3

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