     Case: 13-11281      Document: 00512837691         Page: 1    Date Filed: 11/14/2014




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

                                    No. 13-11281
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                       November 14, 2014
                                                                           Lyle W. Cayce
JAY SANDON COOPER,                                                              Clerk


                                                 Plaintiff-Appellant

v.

DALLAS POLICE ASSOCIATION; GLENN WHITE,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:05-CV-1778


Before JOLLY, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Jay Sandon Cooper moves for leave to proceed in forma pauperis (IFP)
in his appeal of the district court’s order compelling him to respond to a
postjudgment discovery request by the Dallas Police Association and Glenn
White, the order imposing sanctions against him for his failure to comply, and
the order denying his numerous motions. The district court denied his IFP
motion and certified that the appeal was not taken in good faith under 28


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-11281

U.S.C. § 1915(a)(3) and Federal Rule of Appellate Procedure 24(a)(3). By
moving to proceed IFP, Cooper is challenging the district court’s certification
that his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197,
202 (5th Cir. 1997). This court’s inquiry into an appellant’s good faith “is
limited to whether the appeal involves legal points arguable on their merits
(and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983) (internal quotation marks and citation omitted).
      The district court did not abuse its discretion in ordering Cooper to
answer the appellees’ interrogatories. The appellees were permitted to file the
discovery request seeking information relevant to the enforcement of the
judgment. See Fed. R. Civ. P. 69(a); TEX. R. CIV. P. 621a. Rule 69 permitted
the defendants to proceed under state law, and there is no limit to the number
of interrogatories that may be propounded under Texas Rule of Civil Procedure
621a. See TEX. R. CIV. P. 190.6. Cooper admitted at the hearing that the
appellees served him with the postjudgment discovery and that he did not
respond or object to the discovery. Therefore, he waived any objections to the
interrogatories. See FED. R. CIV. P. 33(b)(4); see also In re United States, 864
F.2d 1153, 1156 (5th Cir. 1989); TEX. R. CIV. P. 193.1, 193.2(e); Reynolds v.
Murphy, 188 S.W.3d 252, 260 (Tex. App. 2006). The defendants attached a
good faith certification to their motion to compel and their motion for sanctions.
The district court did not abuse its discretion in ordering Cooper to comply with
the appellees’ discovery request. See FED. R. CIV. P. 37(a); Smith & Fuller, P.A.
v. Cooper Tire & Rubber Co., 685 F.3d 486, 488 (5th Cir. 2012); United States
v. City of Jackson, 359 F.3d 727, 732 (5th Cir. 2004); United States v.
McWhirter, 376 F.2d 102, 106 (5th Cir. 1967).
      The district court did not abuse its discretion in imposing sanctions
against Cooper for his failure to comply. The appellees met their burden to



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                                 No. 13-11281

show that Cooper should be held in contempt because the order compelling
Cooper to respond was in effect, he did not respond or object, and he did not
demonstrate that he was unable to comply or present any other relevant
defense. See Piggly Wiggly Clarksville, Inc. v. Mrs. Baird’s Bakeries, 177 F.3d
380, 382 (5th Cir. 1999). The district court determined that his refusal to
comply was the result of willful disobedience.      The district court had the
authority under Rule 37 to impose sanctions for Cooper’s refusal to comply with
its discovery order. See Smith & Fuller, P.A., 685 F.3d at 488; McWhirter, 376
F.3d at 106.   Therefore, the district court did not abuse its discretion in
imposing sanctions against Cooper for his refusal to comply with the court’s
prior order. See Whitcraft v. Brown, 570 F.3d 268, 271 (5th Cir. 2009).
      The district court did not err in rejecting Cooper’s argument that the
order was not definite or specific, finding that the order clearly required him
to answer every interrogatory.     The district court did not err in rejecting
Cooper’s argument that sanctions were not authorized in a Title VII action.
See Tollett v. City of Kemah, 285 F.3d 357, 368-69 (5th Cir. 2002) (affirming
award of attorney’s fees pursuant to Rule 37 for failure to comply with
discovery order in a Title VII case); Paskauskiene v. Alcor Petrolab, L.L.P., 527
F. App’x 329, 334 (5th Cir. 2013) (affirming award of reasonable expenses and
attorney’s fees pursuant to Rule 37 for failure to comply with discovery order
against plaintiff in Title VII case). The notice of the hearing did not violate
Cooper’s due process rights as it correctly stated that the hearing would
concern the motion for sanctions, and the magistrate judge properly allowed
testimony concerning related matters.       The district court did not err in
imposing sanctions despite Cooper’s indigence. See Day v. Allstate Ins. Co.,
788 F.2d 1110, 1114-15 (5th Cir. 1986) (affirming monetary sanctions and
attorney’s fees imposed on indigent party for his willful refusal to comply with



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                                     No. 13-11281

discovery orders).     Nor did the district court did err in rejecting Cooper’s
argument that penalties should not be incurred from the date of the order. See
FED. R. CIV. P. 62(a), (d).
      Cooper argues that the district court erred in granting the motion for
sanctions during an automatic stay imposed by the bankruptcy court during
his bankruptcy proceedings. The district court did not err in holding that the
governmental unit exception to the automatic stay applied to district court
sanctions order. See Sabre Group, Inc. v. European Am. Travel, Inc., 192 F.3d
126, 1999 WL 683863 at *2 (5th Cir. 1999) 1; see also Alpern v. Lieb, 11 F.3d
689, 690 (7th Cir. 1993) (holding Rule 11 sanction proceeding was exempt from
automatic stay); In re Berg, 230 F.3d 1165, 1167-68 (9th Cir. 2000) (same).
       Finally, Cooper argues that the district court judge should have recused
himself for bias because he improvidently granted the defendants’ motion to
compel without reviewing the interrogatories. Cooper failed to show that there
was a basis for recusal of the district court judge under 28 U.S.C. §§ 144 or 455.
The district court’s adverse rulings against Cooper were not an adequate basis
for demanding recusal. See United States v. MMR Corp. 954 F.2d 1040, 1045
(5th Cir. 1992). Therefore, the district court judge did not abuse his discretion
in not recusing himself for alleged bias. See United States v. Anderson, 160
F.3d 231, 233 (5th Cir. 1998).
       Because the appeal lacks arguable merit and is therefore frivolous,
Cooper’s motion for leave to proceed IFP on appeal should be denied, and his
appeal should be dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24;
Howard, 707 F.2d at 220; 5TH CIR. R. 42.2.
      IFP MOTION DENIED; APPEAL DISMISSED.


      1 See Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006) (recognizing that
unpublished decisions issued after January 1, 1996 are not controlling precedent but may be
considered persuasive authority).


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