In Re: Jo Ann Nixon

Filing 15

REPORT AND RECOMMENDATIONS recommending that the court permanently disbar Jo Ann Nixon's right to practice law before the United States District Court for the Western District of Louisiana. Signed by Magistrate Judge Kathleen Kay on May 17, 2012. Objections due to R&R by June 4, 2012.(crt,Benoit, T) Modified on 5/18/2012 to change event type (Benoit, T).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

:

NO. 6-10-MC-00009

:

MAGISTRATE JUDGE KAY

IN RE: JO ANN NIXON

REPORT AND RECOMMENDATION

Jo Ann Nixon is an attorney admitted to the bar of the United States District Court for the
Western District of Louisiana representing clients in social security matters before this court.
On October 13, 2009, this matter was referred to the undersigned by Judge Tucker
Melançon to consider whether disciplinary action should be taken against Ms. Nixon. Pursuant
to the court’s mandate the undersigned conducted a hearing on March 23, 2010, in accordance
with Local Rule 83.2.10 Section A.1. 1
As a preliminary matter it must be noted that respondent has once already been
sanctioned by this court for a pattern of failing to comply with filing deadlines or, in some cases,
failing to file anything at all in compliance with court orders issued. In Menard v. Jo Anne B.
Barnhart, Docket No. 03-2160 of this court, Magistrate Judge Mildred Methvin issued an
opinion rendering findings and conclusions reached after hearing on the issue of Ms. Nixon’s
possible disbarment from practice by this court. After detailing actions of Ms. Nixon in that case
and others handled by this court, Magistrate Judge Methvin recommended that Ms. Nixon be
placed “on probation” for a period of one year and detailed conditions with which Ms. Nixon
was to comply in order to be allowed to continue to practice before this court.

That

recommendation included the condition that:
1

Location Rule 32.2.10 Section A.1 provides that “[a]ny judge of this Court may initiate disciplinary proceedings,
including fine, suspension or disbarment, pursuant to this section.”

Any failure to timely file pleadings or otherwise comply with court orders in any
case pending in this district will be deemed a violation of this probationary
period. In the event Ms. Nixon needs more time to file a brief, she shall timely
file a motion for extension of time, and shall comply with any orders issued in
conjunction herewith.
03-2160, Doc. 14, p. 5.
It appears Ms. Nixon survived the probationary period but later resumed her predilection
for late filings or no filings at all in social security cases leading Judge Melançon to make the
current referral.
At the October 13, 2009, hearing the court reviewed with Ms. Nixon her various actions
and inactions that would indicate that sanctions, possibly disbarment from practice before this
court, would be warranted. Ms. Nixon categorized her behavior at that point as “errors and
omissions.” Although she recognized that ultimately the responsibility was her own, Ms. Nixon
stated that she delegated responsibility of filing to her office staff and that staff had not been
properly trained on the court’s electronic filing system. Ms. Nixon indicated she felt the problem
no longer existed in her office, that her staff was scheduled for training in electronic filing, a fact
subsequently verified by the undersigned. 2 Ms. Nixon asked that the court impose a monetary
fine rather than disbarment. The impression of the undersigned following that hearing was that
Ms. Nixon had been forthright about the issues discussed and was willing and making efforts to
remedy the situation.
While this matter was under consideration by the undersigned we received information
that Ms. Nixon’s previously exhibited pattern had returned yet again.

Accordingly we

summonsed her to appear again on August 31, 2011. When confronted with evidence of her
dilatory conduct after her first hearing and after her staff had received appropriate training, Ms.

2

Consultation with the Clerk of Court confirmed that members of Ms. Nixon’s staff received training on April 28,
2010.

Nixon acknowledged that she had a problem and she indicated that she had made a decision to
discontinue filing petitions for review in social security cases.
Attached as an addendum to this Report and Recommendation is a summary of
respondent’s poor performance following the sanctions suggested by Magistrate Judge Methvin
and since the first hearing held in this matter. After careful consideration of the pattern of
conduct of Ms. Nixon after her initial sanction and after two separate hearings where the
undersigned has allowed Ms. Nixon the opportunity to first correct her behavior and then to
explain how or why she has failed to do so, and after concluding that there seems little possibility
that her behavior will improve given additional time, it is the recommendation of the
undersigned that Ms. Nixon be disbarred from further practice before the United States District
Court, Western District of Louisiana. 3
Analysis
“It is beyond dispute that a federal court may suspend or dismiss an attorney as an
exercise of the court's inherent powers”. Resolution Trust Corp v. Bright, 6 F.3d 336, 340 (5th
Cir. 1993), citing In re Snyder, 472 U.S. 634, 643–644, 105 S.Ct. 2874, 2880, 86 L.Ed.2d 504
(1985) and Matter of Thalheim, 853 F.2d 383, 389 (5th Cir.1988), and cited as authority more
recently in the unpublished opinion In re Nalls, 124 Fed.Appx. 232 (5th Cir. 2005). A federal
court may disbar an attorney only upon presentation of clear and convincing evidence sufficient
to support the finding of one or more violations warranting this extreme sanction. In re Medrano,
956 F.2d 101, 102 (5th Cir.1992). Clear and convincing evidence, in this context, is “that weight
of proof ‘which produces in the minds of the trier of fact a firm belief or conviction as to the
truth of the allegations sought to be established, evidence so clear, direct and weighty and
3

Local Rules 83.2.4 Section B provides that “proceedings initiated under Section A above shall be submitted to the
active judges of this Court. Action on the proceedings shall be by a majority vote of the active Article III judges of
this Court in a regular or special meeting or in conference call.”

convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the
truth of the precise facts' of the case.” In re Medrano, 956 F.2d at 102 (quoting Cruzan by
Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 285 n. 11, 110 S.Ct. 2841, 2855 n.
11, 111 L.Ed.2d 224 (1990)). The privilege of practicing law “is not ‘a matter of grace and
favor.’” Willner v. Committee on Character and Fitness, 373 U.S. 96, 102; 83 S.Ct. 1175, 117980, 10 L.Ed.2d 224 (1963). An attorney's license to practice is a “right” which cannot lightly or
capriciously be taken from him. “[T]he power to withdraw that right ‘ought always to be
exercised with great caution; and ought never to be exercised except in clear cases of
misconduct, which affect the standing and character of the party as an attorney.’” Ex parte Wall,
107 U.S. 265, 288, 2 S.Ct. 569, 589, 27 L.Ed. 552 (1883).
At first glance it would appear that disbarment as a sanction for contumacious dilatory
filings would not be the type of misconducted contemplated by courts as warranting the extreme
sanction of disbarment. However, after consideration of the facts of this case, particularly the
fact that respondent has once already been sanctioned by this court and has been given more than
ample opportunity to correct her behavior, and also considering that this poor performance can
be characterized as nothing other than detrimental to the welfare of the clients she purports to
represent,
IT IS RECOMMENDED that the court permanently disbar Jo Ann Nixon’s right to
practice law before the United States District Court for the Western District of Louisiana.
Under the provisions of 28 U.S.C. Section 636 and Rule 72, parties aggrieved by this
recommendation have fourteen (14) business days from service of this report and
recommendation to file specific, written objections with the Clerk of Court. A party may

respond to another party's objections within fourteen days after being served with a copy of any
objections or response to the District judge at the time of filing.
Failure to file written objections to the proposed factual findings and/or the proposed
legal conclusions reflected in this Report and Recommendation within fourteen (14) days
following the date of its service, or within the time frame authorized by Fed.R.Civ.P. 6(b), shall
bar an aggrieved party from attacking either the factual findings or the legal conclusions
accepted by the District Court, except upon grounds of plain error. See, Douglass v. United
Services Automobile Association, 79 F.3d 1415 (5th Cir. 1996).
THUS DONE this 17th day of May, 2012.

In Re Jo Ann Nixon
Addendum
Difficulties with Ms. Nixon following Magistrate Judge Methvin’s recommendation of a
probationary period include:
08-00072 Clay v SSA – An order was issued to show cause why complaint should
not be dismissed. Show cause hearing set for 10/15/08. Deficiency corrected on 10/14/08.
08-00470 Thibeaux v SSA – An order was issued to show cause why complaint
should not be dismissed. Show cause hearing set for 6/19/08. Deficiency corrected 6/16/08.
08-00941 Bonin v SSA – A deficiency was issued for 2 IFP motions. On 8/18/08
an order was signed striking the motions. Second deficiency issued because no filing fee paid.
On 10/9/08 complaint was struck as deficient. Case terminated.
08-00950 Watson v SSA – A notice of intent to dismiss for failure to effect service
gave Nixon 10 days to correct. Nixon filed the return of summons a month later. Also
deficiency issued for failure to attach a certificate of service which deficiency was eventually
corrected.
08-1711 Jack v SSA – A show cause hearing held to determine failure to file
return of service on Summons. Nixon failed to show for hearing. R&R issued dismissing the
case. R&R also issued recommending sanctions in the amount of $1000 for disobedience of
court orders. Judgment adopting R&R signed 10/13/09.
09-00207 Gabriel v SSA – Plaintiff’s brief due on 12/5/08. On 9/8/09 order
issued making brief due on 9/16/09. Brief filed on 9/16/09.
09-00230 Gabriel v SSA – On 6/29/09 a notice of intent to dismiss for failure to
effect service was issued. Case dismissed 10/2/09 for failure to prosecute.
09-00607 Davis v SSA – On 9/8/08 notice of intent to dismiss for failure to effect
service was issued. On 10/20/09 case dismissed for failure to prosecute. On 10/20/09 a
Summons filed into the record and case proceeds to judgment affirming Commissioners
decision.
Difficulties with Ms. Nixon since the March 23, 2011, hearing handled by the
undersigned include:
10-125 Johnson v SSA - Claimant’s brief was due on 8/2/10. Nixon filed both the
brief and a Motion for Extension on 10/10/10. Court granted permission for out of time filing.
10-557 Welch v SSA – An order to show cause was issued because plaintiff failed
to file brief within deadlines established by the Court; brief filed 1 day before Show Cause
hearing.

10-1037 Briggs v. SSA - After denial of claim for supplementary security income
payments; request for hearing before Administrative Law Judge was filed beyond 60 days after
denial notice [see 6:10-cv-01037, doc. 12, p. 1-2], ALJ gave 10days to show good cause for not
filling within the 60day period; no response was given by attorney Nixon; ALJ ordered dismissal
because claimant had not established good cause for missing the deadline [Id.] Request by
claimant for review of ALJ dismissal filed in U.S. District Court, Western District of Louisiana,
Lafayette Division; Commissioner of Social Security moved for summary judgment, no
opposition filed by deadline; case was dismissed with prejudice [Id.]
10-1174 Gray v. SSA – An order to show cause was issued because plaintiff failed
to file brief within deadlines established by the Court; brief filed 1 day before show cause
hearing.
10-1203 Thompson v. SSA – An order to show cause was issued because plaintiff
failed to file brief within deadlines established by the Court; brief filed 1 day before Show Cause
hearing.
10-1315 Joseph v. SSA - Plaintiff’s initial complaint incorrectly identified plaintiff
(used two names, name in heading was incorrect); corrective document was required and filed.
Plaintiff’s brief was due 6/14/2011 and filed on 11/15/11.
10-1424 Landry v. SSA – An order to show cause was issued because plaintiff
failed to file brief within deadlines established by the Court; brief filed 1 day before Show Cause
hearing.
10-1425 Maneaux v. SSA – An order to show cause was issued because plaintiff
failed to file brief within deadlines established by the Court; brief filed 1 day before Show Cause
hearing.
10-1591 Gray v. SSA – An order to show cause was issued because plaintiff failed
to file brief within deadlines established by the Court; brief filed 1 day before Show Cause
hearing.
10-1677 LeBlanc v. SSA - Plaintiff’s brief not filed within deadlines set by court;
was due 60days after filing of transcript (transcript filed 4/8/2011), brief filed 8/31/2011.