Shelton Modelist v. Angelica Hernandez , 482 F. App'x 971 ( 2012 )

Case: 11-20618 Document: 00512050286 Page: 1 Date Filed: 11/12/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 12, 2012
No. 11-20618
Summary Calendar Lyle W. Cayce
Clerk
SHELTON R. MODELIST,
Plaintiff-Appellant
v.
ANGELICA M. HERNANDEZ; WILLIAM R. BURKE, JR.; LINEBARGER
GOGGAN BLAIR; ANTHONY W. NIMS; CHRIS STACY,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:11-CV-387
Before JOLLY, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Shelton Modelist appeals the dismissal of his 42 U.S.C. § 1983 action.
After losing a tax-collection case in state court, Modelist filed a civil rights action
against the presiding judge in the tax case, the court-appointed tax master (the
judicial defendants), and the lawyers and law firm who represented the taxing
unit (the lawyer defendants). Modelist accused them of conspiring to maliciously
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 11-20618
obtain a “fraudulent” and “fabricated” final judgment, in violation of his rights
of access to the courts, due process, and equal protection.
Modelist’s claims are frivolous because the defendants are absolutely
immune from suit under federal law. See Martinez v. State of California, 444
U.S. 277, 284 n.8 (1980). The judge is absolutely immune from liability for acts
done in his judicial capacity. See Mireles v. Waco, 502 U.S. 9, 9-10 (1991). The
special tax master has the same judicial immunity because he was performing
a judicial function. See Bass v. Parkwood Hospital, 180 F.3d 234, 244 (5th Cir.
1999). Modelist offers a conclusory assertion that the judicial defendants acted
in the clear absence of jurisdiction, but his allegations concern “alleged errors
made by the judge in his judicial role” and thus establish that immunity applies.
Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982). The lawyer defendants
are also absolutely immune because they were performing “functions analogous
to those of a prosecutor.” Butz v. Economou, 438 U.S. 478, 515 (1978); see Imbler
v Pachtman, 424 U.S. 409, 420-24 (1976); Green v. State Bar of Texas, 27 F.3d
1083, 1088 & n.7 (5th Cir. 1994).
Moreover, Modelist fails to allege “enough facts to state a claim to relief
that is plausible on its face” against any defendant. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). He points to no specific factual allegation
that, if accepted as true, would support his legal conclusions of fraud and
corruption, and his assertions of legal errors do not allege a conspiracy. See
Arsenaux, 726 F.2d at1023-24. Modelist’s appeal is DISMISSED as frivolous.
This litigation is similar to recent, unrelated litigation Modelist pursued
after he lost a state-court loan foreclosure proceeding. See Modelist v. Miller,
445 F. App’x 737 (5th Cir. 2011). After Modelist lost the foreclosure action, a
federal jury rejected various federal claims against his lender and other
defendants. See id. at 738 (background). Thereafter, Modelist “filed various
lawsuits all of which have, at their core, been based on his apparent belief that
he should have won the original lawsuit.” Id. In Modelist’s federal action
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against judges, attorneys, and lenders involved in the foreclosure litigation, we
affirmed a $5,000 sanction award against Modelist under Federal Rule of Civil
Procedure 11(c)(1), and we told him, “[T]his relentless and repetitive litigation
must end.” Id. at 740-42. Undeterred by the sanction and our admonishment,
Modelist has again accused those involved in prior litigation of conspiring to
violate his constitutional rights.
Accordingly, as a sanction for repeated frivolous and vexatious litigation,
we ORDER Modelist to pay $500 to the clerk of this court. Until he pays the full
$500, Modelist is BARRED from filing any pro se civil appeal in this court or any
pro se initial pleading in any court which is subject to this court’s jurisdiction.
The clerks of this court and all federal courts within this circuit are hereby
directed to return to Modelist, unfiled, any attempted submissions that do not
comply with this court’s order.
Modelist’s motion for sanctions against a deputy clerk of this court is
DENIED.
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