     Case: 10-20432     Document: 00511587811         Page: 1     Date Filed: 08/30/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                          August 30, 2011

                                       No. 10-20432                        Lyle W. Cayce
                                                                                Clerk

SHELTON R. MODELIST,

                                                  Plaintiff - Appellant,
v.

JUDGE GRAY H. MILLER; LINDSAY LEE LAMBERT; CHALISE R.
STOVALL; MICHAEL GOMEZ; R. DEWAYNE DANNER; HILLARY
GREEN; LINDA STOREY; TIFFANY R. MOONEY; COUNTRYWIDE HOME
LOANS, INC.; BANK OF AMERICA HOME LOANS; REX L. KESLER;
JUDGE SAMUEL B. KENT; AAMES FUNDING, CORPORATION., also
known as Deutsche Bank National Trust, Co.; ACCREDITED HOME
LENDERS, INC.,

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                USDC 4:10-CV-955


Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
        Shelton Modelist appeals the district court’s dismissal of his 42 U.S.C.
§ 1983 claim against several judges, attorneys, and banks involved in foreclosure
proceedings against his property. Modelist alleged that the defendant-appellees

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-20432

conspired with each other to deprive him of his constitutional rights, including
due process, equal protection, and his right of access to the courts. Modelist also
appeals the district court’s imposition of sanctions against him, arguing that the
district court erred in denying him notice and an opportunity to contest the
motion for sanctions filed by two of the defendants. We AFFIRM.
                              I. BACKGROUND
      This is the fourth lawsuit Modelist has filed seeking to challenge adverse
rulings in foreclosure proceedings instituted in both federal and Texas state
court against some property Modelist owned in Texas. In the original suit,
Modelist received a full trial on the merits and lost. Thereafter, he has filed
various lawsuits all of which have, at their core, been based on his apparent
belief that he should have won the original lawsuit. In this latest lawsuit, that
belief takes the form of accusing almost everyone involved in the prior lawsuits
of being in a vast and far-flung conspiracy to deprive him of his constitutional
rights. The alleged co-conspirators include several state and federal judges and
the attorneys for the winning parties. All of the defendants filed motions to
dismiss the suit pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6).
The district court struck Modelist’s motion for an extension of time to reply to
the motions to dismiss, finding that Modelist’s motion failed to comply with the
court’s local rules. Modelist filed responses to three of the motions to dismiss on
May 10, 2010. The district court granted the motions to dismiss on May 10 and
May 11, 2010. On May 10, the district court also issued an order awarding
sanctions against Modelist. The district court found that Modelist’s lawsuit had
no basis in law or in fact and that Modelist failed to make a reasonable inquiry
into the facts and law before filing suit.
      Modelist then filed a motion to vacate pursuant to Federal Rule of Civil
Procedure 59(e) and a motion seeking leave to proceed in forma pauperis on
appeal. The district court denied both of those motions. Modelist thereafter

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                                  No. 10-20432

filed his notice of appeal and a separate motion with this court seeking to
proceed in forma pauperis. We have carried that motion with the case. See
generally 28 U.S.C. § 1915; FED. R. APP. P. 24.
                               II. DISCUSSION
      A. Striking Modelist’s Motion for Extension of Time Was Not an
      Abuse of Discretion
      We find no merit to Modelist’s first argument that the district court erred
in striking his motion for an extension of time to file his responses to the
defendants’ motions to dismiss. “We review the district court’s administrative
handling of a case, including its enforcement of the local rules and its own
scheduling orders for abuse of discretion.” Macklin v. City of New Orleans, 293
F.3d 237, 240 (5th Cir. 2002). Modelist received notice of the deficiencies in his
motion and did not resubmit a corrected motion. Although claiming that the
district court’s enforcement of the local rules deprived him of constitutional
rights, Modelist filed responses to three of the defendants’ motions to dismiss.
He has not shown how the outcome in this case would have been different had
he been given more time to respond. Further, we have considered his arguments
against dismissal in this appeal. We find no abuse of discretion here.
      B. Modelist’s Suit Was Properly Dismissed
      We next turn to whether the district court erred in dismissing Modelist’s
suit. We review “a district court’s dismissal under Rule 12(b)(6) de novo,
‘accepting all well-pleaded facts as true and viewing those facts in the light most
favorable to the plaintiffs.’” Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338
(5th Cir. 2008) (quoting Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007) (per
curiam)). However, “we will not ‘strain to find inferences favorable to the
plaintiffs’” nor “accept conclusory allegations, unwarranted deductions or legal
conclusions.” Southland Sec. Corp. v. INSpire Ins. Solutions Inc., 365 F.3d 353,
361 (5th Cir. 2004) (citation omitted).

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      Modelist’s conspiracy theory is frivolous. Long on invective and virtually
devoid of any relevant facts, Modelist’s claims fail for various reasons. First, to
succeed on his claim, Modelist must relitigate in federal court the validity of
prior federal and state court judgments.       He is barred from doing so by
preclusion principles. See N.Y. Life Ins. Co. v. Gillispie, 203 F.3d 384, 387 (5th
Cir. 2000) (noting that a party could only win her state suit by convincing the
state court that the earlier federal judgment was in error, and this constituted
exactly the type of claim barred by the doctrine of res judicata); see Royal Ins.
Co. of Am. v. Quinn-L Capital Corp., 960 F.2d 1286, 1293 (5th Cir. 1992) (“A
party that has had an opportunity to litigate the question of subject-matter
jurisdiction may not . . . reopen that question in a collateral attack upon an
adverse judgment. It has long been the rule that principles of res judicata apply
to jurisdictional determinations both subject matter and personal.” (quoting Ins.
Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702
(1982))).
      Further, Modelist seeks money damages from the defendants, some of
whom are judges entitled to absolute immunity from such suits for actions taken
in their judicial capacity. See Holloway v. Walker, 765 F.2d 517, 522 (5th Cir.
1985) (“It is a well established rule that where a judge’s absolute immunity
would protect him from liability for the performance of particular acts, mere
allegations that he performed those acts pursuant to a bribe or conspiracy will
not be sufficient to avoid the immunity.”). Modelist provides no support for his
conclusory assertions that the judges acted in a clear absence of all jurisdiction
as required to overcome their absolute immunity. See id. at 523 (stating that
“[j]udicial immunity does not extend to acts committed with a clear absence of
all jurisdiction,” but “where the alleged harm, though resulting from a bribe or
conspiracy, was inflicted by acts to which absolute immunity would apply, the



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                                        No. 10-20432

complaint is insufficient to avoid judicial immunity”).1 As far as the defendants
who are not judges, he provides no facts whatsoever to support a claim that they
“corruptly conspired” with a judge, see Dennis v. Sparks, 449 U.S. 24, 29 (1980);
Richard v. Hoechst Celanese Chem. Grp., Inc., 355 F.3d 345, 353 (5th Cir. 2003),
as necessary to make them state actors for §1983 purposes. “[M]erely resorting
to the courts and being on the winning side of a lawsuit does not make a party
a co-conspirator or a joint actor with the judge.” Dennis, 449 U.S. at 28.
       Ultimately, Modelist failed to provide “enough facts to state a claim to
relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007), and the district court did not err in dismissing his claim. See
Arsenaux v. Roberts, 726 F.2d 1022, 1023-24 (5th Cir. 1982) (affirming dismissal
of § 1983 claim based on an alleged conspiracy between a lawyer and judge to
secure a divorce, as “[t]he conspiracy allegations made by [the plaintiff] were
conclusory, and more than a blanket of accusation is necessary to support a §
1983 claim”). However much Modelist sincerely believes that he should not have
lost the first lawsuit, this relentless and repetitive litigation must end.
       C. Sanctions Against Modelist Were Proper
       We therefore turn to the issue of whether the district court erred in
imposing sanctions on him.2 “We review the imposition of sanctions under Rule
11 for abuse of discretion. A district court necessarily abuses its discretion in
imposing sanctions if it bases its ruling on an erroneous view of the law or a
clearly erroneous assessment of the evidence.” Elliott v. Tilton, 64 F.3d 213, 215
(5th Cir. 1995). On April 13, 2010, the district court entered a show cause order

       1
         Although “[j]udicial immunity does not extend to actions for equitable and declaratory
relief under section 1983,” Holloway, 765 F.2d at 525 (citing Pulliam v. Allen, 466 U.S. 522
(1984)), Modelist’s conclusory assertions of conspiracy are without factual support.
       2
         We note that a district court has jurisdiction to impose Rule 11 sanctions regardless
of the existence of subject-matter jurisdiction. See Willy v. Coastal Corp., 503 U.S. 131, 137-39
(1992).

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                                         No. 10-20432

requiring Modelist to explain why his claim was not frivolous. On April 21, two
of the defendant-appellees filed a motion for sanctions. The court held the show
cause hearing on April 28, but did not make any findings or impose sanctions at
that time.      On May 10, the district court granted sanctions, finding the
defendants’ motion “well taken” and stating in its order that Modelist filed a
frivolous lawsuit without making a reasonable advance inquiry into the facts
and law.
       Because Modelist was not served with the defendants’ motion for sanctions
pursuant to the safe-harbor provision of Rule 11(c)(2),3 an award of sanctions
based on the defendant-appellees’ motion would not be proper.4 However, a
district court may sua sponte impose sanctions on a litigant pursuant to Rule
11(c)(1) if the court first gives the litigant notice and an opportunity to be heard.


       3
          A party must serve its motion for sanctions on the opposing party at least twenty-one
days before filing the motion with the court. FED. R. CIV. P. 11(c)(2). We cannot affirm the
sanctions award on this ground because we find no indication that the defendant-appellees
acted in accordance with the safe harbor provision. See Elliott, 64 F.3d at 216 (finding
sanctions under Rule 11 inappropriate because the party seeking sanctions did not comply
with the procedural “safe harbor” prerequisite of serving the motion before filing it); see also
Tompkins v. Cyr, 995 F. Supp. 689, 693 (N.D. Tex. 1998) (refusing to impose Rule 11 sanctions
because the defendants did not comply with the “safe harbor” requirement; rather the
certificates of service showed that the motions were served on opposing counsel either the day
they were filed or shortly before). However, we also note that the purpose of the safe harbor
provision is to allow a party the opportunity to avoid sanctions by withdrawing a frivolous
pleading. Modelist has not attempted to withdraw his lawsuit. Instead, he continues to
vigorously argue the merits of it.
       4
          The defendants’ motion also listed 28 U.S.C. § 1927 as authority for sanctions against
Modelist. The district court’s order only referred to the Rule 11 “reasonable inquiry”
requirement. We leave open the question of whether § 1927 sanctions can be imposed against
a pro se litigant because even if they could, the district court did not make the requisite
“detailed findings to determine whether the requirements of the statute have been met, and
which, if any, excess costs, expenses or attorney’s fees were incurred because of [the plaintiff’s]
vexatious multiplication of the proceedings.” Browning v. Kramer, 931 F.2d 340, 345 (5th Cir.
1991). We also find no basis cited in the order for imposing sanctions pursuant to the district
court’s inherent authority. See Elliot, 64 F.3d at 217 (noting that “the threshold for the use
of inherent power sanctions is high” and that “in order to impose sanctions against an attorney
under its inherent power, a court must make a specific finding that the attorney acted in ‘bad
faith’” (citations omitted)).

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                                        No. 10-20432

See Elliott, 64 F.3d at 216 (noting that a court may order sanctions on its own
initiative if it enters an order describing the offending conduct and directing the
offending parties to show cause why Rule 11 has not been violated). Here, the
district court issued a show cause order demanding that Modelist demonstrate
why his suit was not frivolous. The docket reflects that the district court also
held an oral hearing on the motion.5 Modelist had an opportunity to respond to
the show cause order both at the hearing and in subsequent responses and
motions he filed with the court. The amount of sanctions was based upon
requests from defendants’ counsel of which Modelist also had notice and an
opportunity to respond. Given these facts, we find that Modelist received the
due process required by the law.              Accordingly, we AFFIRM the award of
sanctions as an exercise of the district court’s sua sponte powers under Rule
11(c).6
       D. Modelist’s Motion to Proceed In Forma Pauperis Should be
       Denied
       We also DENY Modelist’s motion to proceed in forma pauperis, as that
motion was not filed within the thirty-day time limit specified by Federal Rule
of Appellate Procedure 24.7

       5
         We have not been provided with a transcript of the hearing on the show cause order.
Modelist had the burden of providing that transcript to this court to support his argument that
the district court never alerted him to the possibility of sanctions as a result of his frivolous
suit. See FED. R. APP. P. 10; Alizadeh v. Safeway Stores, 910 F.2d 234, 237 (5th Cir. 1990)
(rejecting an argument that the district court erred in finding a suit frivolous because the
appellant did not meet her “burden of including in the record a transcript of the evidence
pertinent to the finding in question”).
       6
         Although it seems that the district court awarded sanctions against Modelist pursuant
to the defendant-appellees’ motion, we may affirm that award on an alternative ground
supported by the record. See Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992) (“We
can, of course, affirm the district court’s judgment on any grounds supported by the record.”).
       7
         Rule 24 provides that: “[a] party may file a motion to proceed on appeal in forma
pauperis in the court of appeals within 30 days after service of the notice prescribed in Rule
24(a)(4).” FED. R. APP. P. 24(a)(5). The district court denied Modelist’s motion to proceed in

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                                       No. 10-20432

AFFIRMED; MOTION TO PROCEED IN FORMA PAUPERIS DENIED.




forma pauperis on June 21, 2010. Modelist did not file his motion with this court until August
10, 2010.

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