Hirczy v. Hamilton , 190 F. App'x 357 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 29, 2006
Charles R. Fulbruge III
No. 05-20213 Clerk
Summary Calendar
WOLFGANG HIRCZY, Ph.D.,
Plaintiff – Appellant,
v.
DONA G. HAMILTON,
Defendant – Appellee.
Appeal from the United States District Court
for the Southern District of Texas
No. 05-cv-184
* * * * * * * * * * * * * * *
Consolidated with
No. 05-20348
Summary Calendar
FACULTY RIGHTS COALITION; WOLFGANG P. H. DE MINO,
Plaintiffs – Appellants,
v.
GEORGE C. HANKS; JANE NENNINGER BLAND; UNNAMED ADJUNCT
PROFESSORS OF LAW,
Defendants – Appellees.
Appeals from the United States District Court
for the Southern District of Texas
04-cv-4494
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiffs-Appellants challenge the district court’s dismissal
of their two cases, issuance of a permanent injunction, and denial
of a recusal motion. For the reasons that follow, the district
court’s rulings were not in error.
I. BACKGROUND
Plaintiff-Appellant Wolfgang P. Hirczy de Mino is a former
employee of the University of Houston who runs Plaintiff-Appellant
Faculty Rights Coalition, an organization apparently consisting
solely of Hirczy de Mino.1 In two separate cases, he sued Dona
Hamilton, the general counsel for the University, Justices George
Hanks and Jane Bland2 of the First Court of Appeals in Houston, and
unnamed adjunct professors of law. His suits were transferred to
one district court judge and have been consolidated for this
appeal. Hirczy de Mino sought to stop (1) judges, who are
compensated by the University, from adjudicating cases in which the
University is a party and (2) the University from compensating
judges who hear cases in which the University is a party. He also
* Pursuant to 5TH CIR. R. 47.5, this 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that this opinion should not be published and is not precedent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.
1
Because Hirczy de Mino and his organization are essentially
one and the same, we refer to both Appellants only by his name.
2
Justice Bland has been nonsuited.
2
brought an open records claim against Hamilton.
The district court dismissed Hirczy de Mino’s suits pursuant
to Federal Rule of Civil Procedure 12(b)(6) and issued a permanent
injunction against Hirczy de Mino, stating that he may not file
suit in the Southern District of Texas without written permission
of the judge. Subsequently, Hirczy de Mino filed a motion to
transfer, motion to vacate the permanent injunction, motion to
recuse the district court judge, and motion for reconsideration.
All of the motions were denied, with the recusal motion denied as
moot. In his appeal, Hirczy de Mino challenges the dismissal,
issuance of the permanent injunction, and denial of the motion to
recuse.
II. DISCUSSION
A. Dismissal of Hirczy de Mino’s Cases
We review de novo a dismissal for failure to state a claim
upon which relief could be granted under Federal Rule of Civil
Procedure 12(b)(6). GE Capital v. Posey, 415 F.3d 391, 395 (5th
Cir. 2005). Hirczy de Mino lacked standing to pursue his abstract
claims against Hamilton and Hanks. The Supreme Court has
identified three constitutional standing requirements: (1) the
plaintiff must allege that she has suffered or imminently will
suffer an injury; (2) the plaintiff must allege that the injury is
fairly traceable to a the defendant’s conduct; and (3) the
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plaintiff must allege that a favorable federal court decision is
likely to redress the injury. See Bennett v. Spear, 520 U.S. 154,
167 (1997). Here, Hirczy de Mino’s standing fails on the first
requirement. He has alleged no direct injury at the hands of
Hamilton or Hanks. See Los Angeles v. Lyons, 461 U.S. 95, 101–02
(1983) (“The plaintiff must show that he has sustained or is
immediately in danger of sustaining some direct injury as the
result of the challenged official conduct and the injury or threat
of injury must be both real and immediate, not conjectural or
hypothetical.”) (internal quotation marks omitted).
Furthermore, Hirczy de Mino’s open records claim brought
against Hamilton for University of Houston records fails. Without
reaching the merits, we reject the open records claim because
Hamilton is not the proper party. To bring a suit to produce
information under the Texas Government Code, a plaintiff must sue
the governmental body withholding the information. TEX. GOV’T CODE
§ 552.3215. Hirczy de Mino instead has brought suit against an
individual. Therefore, his open records claim is invalid. Having
conducted a de novo review, the district court’s dismissal is
affirmed.
B. Permanent Injunction Issued Against Hirczy de Mino
We review a district court’s grant or denial of a permanent
injunction for abuse of discretion. Peaches Entm’t Corp. v. Entm’t
Repertoire Assoc., 62 F.3d 690, 693 (5th Cir. 1995). The trial
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court abuses its discretion if it: (1) relies on clearly erroneous
factual findings when deciding to grant or deny the permanent
injunction, (2) relies on erroneous conclusions of law when
deciding to grant or deny the permanent injunction, or (3)
misapplies the factual or legal conclusions when fashioning its
injunctive relief. Id. The record demonstrates that the district
court relied on Hirczy de Mino’s litigious history of filing
numerous cases, often without legal or factual support, in making
its determination. Moreover, the district court discussed some of
his previous suits in chambers and in court, giving Hirczy de Mino
an opportunity to defend himself before the court entered the
order.
Contrary to Hirczy de Mino’s contention, a court may issue
sanctions sua sponte. FED. R. CIV. P. 11. A court has the power to
enter orders prohibiting future filings not only from various
statutes and rules relating to sanctions but also from the inherent
power of the court to protect its jurisdiction and judgments and
control its docket. Farguson v. MBank Houston, N.A., 808 F.2d 358,
360 (5th Cir. 1986). Furthermore, this permanent injunction was
“limited to what is sufficient to deter repetition” of his
misconduct. FED. R. CIV. P. 11. Therefore, we find that the
district court did not abuse its discretion in ordering the
permanent injunction.
C. Motion to Recuse Was Untimely
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We review a denial of a motion to recuse for abuse of
discretion. Trevino v. Johnson, 168 F.3d 173, 178 (5th Cir. 1999).
In the instant case, Hirczy de Mino failed to file his motion to
recuse in a timely manner. The general rule on timeliness requires
that “one seeking disqualification must do so at the earliest
moment after knowledge of the facts demonstrating the basis for
such disqualification.” Travelers Ins. v. Liljeberg Enters., 38
F.3d 1404, 1410 (5th Cir. 1994). In fact, the “most egregious
delay” is when “a party already knows the facts purportedly showing
an appearance of impropriety but waits until after an adverse
decision has been made by the judge before raising the issue of
recusal.” See United States v. Sanford, 157 F.3d 987, 989 (5th
Cir. 1998).
Here, Hirczy de Mino learned directly from the Judge’s
disclosure to the parties in open court of the district court’s
association with the University. Nevertheless, he waited over two
months and until after the adverse decision to file his motion to
recuse. He thus committed the worst type of delay by knowing facts
that allegedly might lead to recusal but waiting until after he
received an unfavorable ruling to file his motion to recuse. We
have deemed this to be almost “per se untimeliness.” Id. Because
Hirczy de Mino’s motion was untimely, a substantive review for
abuse of discretion is unnecessary. The district court properly
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denied the motion to recuse as moot because it was untimely.3
III. CONCLUSION
Hirczy de Mino challenges the dismissal of his case, the
issuance of a permanent injunction against him, and the denial of
his motion to recuse. All three challenges fail. Accordingly, we
AFFIRM the district court’s rulings.
3
This Court declines Hirczy de Mino’s invitation to create a
new bright-line rule regarding recusal because, inter alia, he
does not offer any legal support for that theory.
7