     Case: 09-50446     Document: 00511028599          Page: 1    Date Filed: 02/17/2010




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

                                                  FILED
                                                                          February 17, 2010
                                     No. 09-50446
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

RODOLFO RIVERA MUNOZ,

                                                   Plaintiff-Appellant

v.

U.S. XPRESS, INC.,

                                                   Defendant-Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:08-CV-210


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Rodolfo Rivera Munoz moves this court for leave to proceed in forma
pauperis (IFP) in this appeal from the district court’s dismissal with prejudice
of his 42 U.S.C. § 2000e suit. The district court dismissed the suit because
Munoz violated the court’s discovery order by failing to answer questions during
his deposition. The district court also denied Munoz leave to proceed IFP on
appeal, finding that the appeal was not taken in good faith.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50446    Document: 00511028599 Page: 2         Date Filed: 02/17/2010
                                 No. 09-50446

      Munoz’s failure to cooperate during his deposition was in direct
contravention of the district court’s discovery order and prejudiced the opposing
party by impeding its ability to gather information regarding his claim. As an
attorney, Munoz was aware of his discovery obligations.             Moreover, the
imposition of a lesser sanction had failed to deter Munoz from disobeying the
court’s previous orders. Munoz has, therefore, failed to show that the district
court abused its discretion in dismissing the suit as a sanction for violating its
discovery order. See F ED. R. C IV. P. 37(b)(2)(A)(v); FDIC v. Conner, 20 F.3d 1376,
1380-81 (5th Cir. 1994).
      Given the foregoing, Munoz has failed to show that his appeal involves
“legal points arguable on their merits.” Howard v. King, 707 F.2d 215, 220 (5th
Cir. 1983) (internal quotation marks and citation omitted). Accordingly, his
motion to proceed IFP on appeal is denied, and his appeal is dismissed as
frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 1997); 5 TH
C IR. R. 42.2.
      MOTION DENIED; APPEAL DISMISSED.




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