     Case: 13-10165       Document: 00512340114         Page: 1     Date Filed: 08/13/2013




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

                                                                            FILED
                                                                          August 13, 2013
                                     No. 13-10165
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

AUDREY COLEMAN,

                                                  Plaintiff - Appellant

v.

ROY WILLIAMS, JR., Constable Precinct 4;
DEPUTY CARL SMITH, Badge #421;
SERGEANT JASON JOHNSON, Badge #404;
DEPUTY JASON MEEK, Badge #425,

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:12-CV-4874


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       This is an appeal from dismissal pursuant to 28 U.S.C. § 1915(e) of
appellant’s challenges to her eviction. AFFIRMED




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 13-10165     Document: 00512340114      Page: 2   Date Filed: 08/13/2013

                                  No. 13-10165

                                BACKGROUND
      In September 2011, The Bank of New York Mellon ("Bank") acquired
Audrey Coleman's (“Coleman”) home (the "House") in a foreclosure sale and
recorded its Substitute Trustee’s deed. Because Coleman did not leave the
House, the Bank filed a citation for eviction and a petition for forcible detainer.
Coleman was properly served and notified that the suit involved eviction and
that her failure to appear could result in a default judgment against her. On
December 12, 2011, Coleman did not appear in court and the Justice of the Peace
(Precinct 4, Place 2) ordered that the Bank have and recover the House from
Coleman. Later that month, Coleman appealed to the Dallas County Court.
      Coleman received notice that the County Court would hear the case on
February 10, 2012.      On February 9, 2012, Coleman filed for Chapter 7
bankruptcy. The next day, Coleman failed to appear in court and the County
Court issued a judgment of possession in favor of the Bank. Nothing in the
County Court docket indicates that the court was aware that Coleman had filed
for bankruptcy. The County Court issued a writ of eviction on February 27,
2012. On that same day, the bankruptcy court issued an order dismissing
Coleman’s case for various deficiencies (the case formally closed on March 13,
2012).
      Coleman was properly served with the eviction writ on May 14, 2012
(there had been three previous attempts). That day she filed for Chapter 7
again, listing the House as her homestead.           The County Court docket
acknowledges this and notes that “eviction stopped.”          In June 2012, the
bankruptcy Trustee filed a statement that Coleman had not filed all the required
means testing documents and issued a report of no distribution. On July 12,
2012, the bankruptcy court denied Coleman’s untimely motion for a continuation
of the automatic stay. On August 15, 2012, the bankruptcy court ordered that
Coleman was entitled to a discharge and the case was closed on August 23rd.



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                                  No. 13-10165

      Noting that Coleman’s bankruptcy case had terminated, on September 27,
2012, the County Court authorized the Sheriff or any constables to take
possession of the House and evict Coleman. On October 2, a copy of the writ was
posted on Coleman’s door. That day, Coleman filed a “notice of removal to
federal court.” She also filed for Chapter 13 bankruptcy two days later (her case
was dismissed on October 31st for failing to pay the filing fee). A final notice
was taped to the House on November 9, 2012. Three days later, several officers
evicted Coleman.     Coleman sued the constable and the officers, alleging
violations of her constitutional rights (the subject of this appeal).
      The magistrate judge addressed her claims and recommended dismissal
pursuant to § 1915(e) without requiring the defendants to be served.          The
district court adopted her report and recommendation and dismissed. Coleman
appeals.
                                 DISCUSSION
      To the extent we can make out her arguments on appeal, Coleman raises
essentially the same issues that the magistrate judge considered. We find no
reversible error in the resolution of those issues.
      Coleman also contends that the County Court lacked jurisdiction to issue
the judgment of possession (2/10) and writ of possession/eviction (2/27) because
she had filed a bankruptcy petition on February 9. Because the bankruptcy
court jurisdiction covers only property in which the debtor has an interest, and
Coleman’s interest in the House was terminated by the foreclosure sale, her
bankruptcy filing did not stay or prevent the eviction action from proceeding.
      Coleman also argues that the officers were without jurisdiction to evict her
on November 12, 2012 because she had filed her removal motion on October 2nd.
She overlooks, however, that the officers were acting pursuant to the writ the
County Court issued on September 27th, five days before Coleman’s motion (not
to mention that default judgment had been entered eight months earlier). Thus,
the officers’ reliance on the County Court’s writ (which was issued while the

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                                 No. 13-10165

court had jurisdiction) does not make her eviction from the House (belonging to
the Bank) arbitrary or unreasonable in violation of the Fourth Amendment.
      Coleman’s due process claim relies on her repeated assertion that the
House belongs to her because the foreclosure sale and judgment of possession
were illegal. Nothing in the record suggests errors in the foreclosure sale and
Coleman twice elected not to challenge the Bank’s petition for forcible detainer
in court. She has instead repeatedly tried to circumvent the judicial process by
filing for bankruptcy, stays, and frivolous motions in an attempt to delay
eviction. As noted by the district court, Coleman’s claim is essentially an
impermissible challenge to the County Court’s judgment declaring that the Bank
possessed the House. See Acevedo v. Schramm, 104 F. App'x 439, *1 (5th Cir.
2004) (unpublished) (affirming dismissal of a § 1983 suit filed against state
actors that alleged a due process violation when a writ of possession was entered
in a state court proceeding).
      For the foregoing reasons, because Coleman's appeal is utterly without
merit, it is DISMISSED as frivolous. See 5th Cir. R. 42.2. We caution that
future repetitive, frivolous, or abusive filings may result in the imposition of
sanctions, including dismissal, monetary sanctions, and restrictions on her
ability to file pleadings in this court or any court subject to this court’s
jurisdiction.
                APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING




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