Gelabert v. Lynaugh, 89-1876
| Decision Date | 20 February 1990 |
| Docket Number | No. 89-1876,89-1876 |
| Citation | 894 F.2d 746 |
| Parties | Ana Luci GELABERT, Plaintiff-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections, Defendant-Appellee. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Ana Lucia Gelabert, Gatesville, Tex., pro se.
No appearance for defendant-appellee.
Appeals from the United States District Court for the Western District of Texas.
Before GEE, DAVIS and JONES, Circuit Judges.
Sanctions against a recreational litigator occupy us in today's appeal, one in which Ana Lucia Gelabert, a state prisoner, asserts a right to commence new litigation in defiance of an earlier court order sanctioning her for frivolous pro se litigation and forbidding the clerk of court to accept further filings from her until the sanction is satisfied.
Gelabert, a litigious prisoner in the Texas Department of Corrections' (TDC) Mountain View Unit, originally filed this lawsuit in the Southern District of Texas in August 1986. The caption of her suit initially included a great number of other prisoners, but their names are crossed out by Gelabert. Under "Additional Plaintiffs,: the name of Nancy Lane Etter is crossed out with an asterisk; at the bottom of the page Gelabert has written, Under Etter's crossed out name is typed, and not crossed out, At the conclusion of the complaint, it is signed by Ana Lucia Gelabert "for the plaintiff class." Attached are 153 signatures of other prisoners.
Only Gelabert submitted an affidavit of poverty. In her brief, Gelabert states that she alone filed the suit to avoid getting IFP affidavits from the others. The gravamen of Gelabert's suit was a claim that TDC does not pay its inmates an adequate amount of money and, as a result, prison conditions are bad and chances for rehabilitation are lessened.
The district court in the Southern District entered no order in this case other than a standard minute entry advising the plaintiff of the possibility of Fed.R.Civ.P. 11 sanctions. Gelabert filed numerous other pleadings, including a motion for permissive joinder of the co-signees. Another TDC prisoner, Gary Don Washington, moved to intervene on behalf of seven other TDC prisoners.
In September, 1989, the district court transferred this case to the Western District of Texas, noting that Gelabert was confined there. A week later that court dismissed the suit because Gelabert had not complied with a prior court order entered in D.Ct. No. W-87-CA-030, to pay $10 in sanctions for bringing a frivolous lawsuit. Gelabert filed a timely Rule 59(e) motion, which was denied, and a timely notice of appeal.
The district court did not append a copy of its order in Cause No. W-87-CA-030, but it did quote the pertinent language. That order required Gelabert to reimburse the defendant $10 for court costs and further forbade the clerk of court to accept "for filing any further lawsuits on behalf of Plaintiff until the sanction is satisfied and a sworn affidavit is filed with this Court." Gelabert states on appeal that the reference to W-87-CA-030 probably is an error, but concedes that such an order was entered in W-87-CA-307 and W-87-CA-306, cases which Gelabert initially appealed but voluntarily dismissed. The docket sheet in No. 88-1539 reflects that, in W-87-CA-307, a $10 sanction was imposed and the clerk ordered not to accept further lawsuits until the sanction was satisfied and a sworn affidavit to that effect had been filed with the court. No such entry appears on the 88-1538 (W-87-CA-306) docket sheet. In any event, Gelabert does not dispute that such a sanction was imposed in W-87-CA-307, so we need not be deterred by the district court's error.
We have earlier had occasion to enjoin the filing of pauper appeals by vexatious and harassing litigants. See Green v. Carlson, 649 F.2d 285 (5th Cir.), cert. denied, 454 U.S. 1087, 102 S.Ct. 646, 70 L.Ed.2d 623 (1981). The United States Supreme Court also has enjoined such a petitioner for filing petitions for extraordinary writs. In re McDonald, --- U.S. ----, 109 S.Ct. 993, 103 L.Ed.2d 158 (1989). Presumably the district court's decision that a suit is barred under such an injunction is reviewable under the abuse of discretion standard. See generally Procup v. Strickland, 792 F.2d 1069, 1974 (11th Cir.1986) (en banc) (); Peck v. Hoff, 660 F.2d 371, 374 (8th Cir.1981) (...
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