Von Drake v. Rogers , 312 F. App'x 690 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 4, 2009
No. 08-30824 Charles R. Fulbruge III
Summary Calendar Clerk
ERIC VON DRAKE
Plaintiff - Counter Defendant - Appellant
v.
EDGAR LYNN ROGERS; ANGELA ROGERS
Defendants - Counter Claimants - Appellees
GARY LOFTIN; ROY L. BRUN; CHARLES R. SCOTT, RONALD LEE IRVIN
Defendants - Appellees
Appeal from the United States District Court
for the Western District of Louisiana
No. 08-cv-0038
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Eric Von Drake sued his brother, Edgar Rogers, and his brother’s wife in
tort over a property dispute. His complaint also included actions against three
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-30824
Louisiana state court judges, Defendants Brun, Scott, and Irvin, and a clerk of
court, Defendant Loftin, alleging racial discrimination.
In an order rendered June 13, 2008 the district court dismissed the action
against the three judges based on judicial immunity. In a July 28, 2008 order,
the district court dismissed the claims against the Rogers and Loftin. Drake
appeals.
Regarding the district court’s June 13 order dismissing the actions against
the judges, although Defendants argue that Drake failed to file a separate notice
of appeal within 30 days,1 Drake did file a general notice of appeal from the final
judgment entered July 28, 2008. Regardless, the district court found that the
alleged conduct of the judges fell within their official judicial capacity and it did
not err in dismissing the action against the judges on the grounds of judicial
immunity.2
The district court’s July 28, 2008 order dismissed Drake’s claims against
clerk of court, Gary Loftin, and the Rogers. The district court’s order dismissed
the claims against Loftin because Drake failed to file a Rule 7 reply after Loftin
answered Drake’s complaint with a defense of qualified immunity. With his
answer, Loftin filed a motion requesting the court to order Drake to file a Rule
7 reply, which the district court granted.3 Drake never filed the reply. We find
that the district court acted within its discretion in dismissing the claims against
Loftin.4
1
28 U.S.C. § 2107(a); FED . R. APP . P. 4(a).
2
See Ballard v. Wall, 413 F.3d 510, 515 (5th Cir. 2005).
3
See Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995).
4
See Callip v. Harris County Child Welfare Dep’t, 757 F.2d 1513, 1518–20 (5th Cir.
1985).
2
No. 08-30824
On the claims against the Rogers, the district court found that Drake did
not produce any evidence that created a genuine issue of material fact on any of
the elements of his state law tort claims. We note that Drake has come forward
with no facts to support his alleged causes of action in response to either of the
Rogers’ summary judgment motions, the second of which was granted.
Accordingly, we affirm the district court’s grant of summary judgment.5
The district court also addressed the Rogers’ counterclaim against Drake
for $1,500 as damages for Drake’s frivolous action. While the district court order
labels its action as granting the Rogers’ motion for summary judgment, the
district court was effectively imposing sanctions on Drake. A trial court is given
wide discretion over the imposition of sanctions.6 Drake never came forward
with any evidence supporting any of the claims he brought in this action and
failed to file responsive pleadings. We cannot find that the sanctions amounted
to an abuse of discretion.
The district court’s order of July 28, 2008 is AFFIRMED.
5
See Holtzclaw v. DSC Communications Corp., 255 F.3d 254, 257–58 (5th Cir. 2001)
(“[I]f the nonmovant fails to establish facts in support of an essential element of his prima
facie claim, summary judgment is appropriate.”) (citing Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986)).
6
Mercury Air Group, Inc. v. Mansour, 237 F.3d 542, 548 (5th Cir. 2001).
3