1Pursuant 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this opinion should not be published and is not precedent except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.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-40031

 

JAIME DOMINGUEZ,

Plaintiff-Appellant,

versus

WAYNE SCOTT, Director, Texas Department of Criminal Division,

Institutional Division; GARY L. JOHNSON, Director, Texas

Department of Criminal Justice, Institutional Division; TEXAS

DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Defendants-Appellees.

 

Appeal from the United States District Court

for the Eastern District of Texas

(1:99-CV-675)

 

July 5, 2001

Before WIENER, BARKSDALE, and Emilio M. GARZA, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:1

The linchpin to this appeal is the enforceability of sanctions

orders imposed by another court. A district judge enforced

sanctions imposed in another district and, therefore, dismissed

without prejudice this pro se § 1983 action filed by Jaime

Dominguez. (Dominguez had not appealed those earlier sanctions.)

We conclude the district judge did not abuse his discretion.

AFFIRMED.
2

I. 

Two previous pro se prisoner actions Dominguez filed in

federal court are relevant to the case at hand. In the first, he

sued several police officers. The district court for the Northern

District of Texas, the Honorable Sam R. Cummings, dismissed

Dominguez’s action with prejudice for failure, despite numerous

warnings by the court, to comply with the defendants’ discovery

requests. Dominguez v. Stuart, No. 6:94-CV-38 (N.D. Tex. 15 Sept.

1995) (order). Judge Cummings ordered Dominguez to pay the

defendants’ costs and fees incurred defending the action — $3,000

— and barred Dominguez from future filings until he did so. Id.

Dominguez did not appeal the sanction.

In the second action, again pro se and before Judge Cummings,

Dominguez alleged officials of the Texas Department of Criminal

Justice: denied him access to the courts in that a county jail did

not have a law library or provide any access to law books and did

not provide adequate telephone usage; were deliberately indifferent

to his serious medical needs; did not provide enough recreation;

and tampered with his mail. Concluding that Dominguez was

attempting to circumvent the sanction in the first action by

supplementing the complaint in the second action, Judge Cummings

ordered: “Plaintiff shall be and he is hereby barred from filing

future lawsuits”. Dominguez v. Skains, No. 6:94-CV-70 (N.D. Tex.
2In Skains, Dominguez appealed the order striking his

supplemental complaint, but, as stated, did not appeal the

sanction. See Dominguez v. Skains, No. 96-10666 (5th Cir. 27 Nov.

1996). Our court concluded it lacked jurisdiction because “[t]he

district court’s order striking Dominguez’s supplemental complaint

is not an appealable final order, has not been properly certified

as final by the district court, is not an appealable interlocutory

order, and is not appealable under the collateral order doctrine”.

Id. (emphasis added).

3

24 May 1996) (order). Once again, Dominguez did not appeal the

sanction.

2

In 1999, Dominguez brought this pro se (third) action in a

different district — the Eastern District of Texas. He claimed,

inter alia, Defendants had violated the Americans with Disabilities

Act and 42 U.S.C. § 1983 by failing to provide adequate services to

hearing-impaired prisoners. Pursuant to the local rule established

by General Order 94-6 of the Eastern District of Texas, Judge

Howell Cobb enforced the sanction imposed in the Northern District.

Dominguez v. Scott, No. 1:99-CV-657 (E.D. Tex. 27 Oct. 1999)

(order). Judge Cobb dismissed the action “without prejudice until

plaintiff has fulfilled the sanctions imposed by the Northern

District of Texas”. Id. (emphasis added). (Although Judge Cobb

referenced both the Stuart sanction (bar until $3,000 paid) and the

Skains sanction (absolute bar), it is unclear if he relied on both,

or on only the Stuart sanction, in dismissing the action. In

suggesting Dominguez could “fulfill” the sanctions and return to

the court, it appears he relied upon only the Stuart $3,000
4

sanction because the Skains sanction is an unconditional, absolute

bar.) 

II.

Admitting he has not paid the $3,000 sanction, Dominguez

maintains the dismissal of this action was improper, denying him

access to the courts. Therefore, at issue is whether Judge Cobb’s

enforcement of the sanctions was an abuse of discretion in

unconstitutionally denying access to the courts, not whether Judge

Cummings’ imposition of the sanctions resulted in such denial.

A district court’s sanction of a vexatious or harassing

litigant is reviewed for abuse of discretion. Mendoza v. Lynaugh,

989 F.2d 191, 195 (5th Cir. 1993). Along this line, a court should

impose the least severe sanction adequate. Id. at 196; FED. R. CIV.

P. 11(c)(2). As an example, a district court may bar a litigant

from filing future civil rights actions unless he obtains the

approval of a district or magistrate judge. E.g., Murphy v.

Collins, 26 F.3d 541, 544 (5th Cir. 1994) (“most of” litigant’s 15

prior complaints had been dismissed as frivolous or for failure to

prosecute); Mayfield v. Collins, 918 F.2d 560, 562 (5th Cir. 1990)

(sanctions imposed on litigant’s thirty-eighth complaint); but see

Mendoza, 989 F.2d at 196 (prior approval sanction was abuse of

discretion when imposed on litigant’s second complaint). On the

other hand, “the imposition of sanctions must not result in total,

or even significant, preclusion of access to the courts”. Thomas
5

v. Capital Sec. Servs., Inc., 836 F.2d 866, 882 n.23 (5th Cir.

1988) (en banc) (emphasis added). 

Pertinent to the issue at hand, a district court may require

an indigent litigant to pay a monetary sanction imposed in a

previous action before filing a new one. Gelabert v. Lynaugh, 894

F.2d 746, 747-48 (5th Cir. 1990) (finding district court did not

abuse its discretion in requiring litigant, before proceeding, to

pay $10 sanction imposed in earlier case); Moody v. Miller, 864

F.2d 1178, 1179 n.2 (5th Cir. 1989) (noting Fifth Circuit’s

decision to prohibit frivolous litigant “from prosecuting any more

[in forma pauperis] appeals, absent certification of his good faith

by the district court, until he paid the sanctions [totaling $980]

in six of these cases”). 

As stated, at issue here is whether Judge Cobb’s sanctionsenforcement was an abuse of discretion in unconstitutionally

denying access to the courts, not whether Judge Cummings’

sanctions-imposition resulted in such denial. As discussed, the

underlying sanctions in Stuart and Skains – a bar on future actions

until the $3,000 fees were paid in the former, and an absolute bar

on filing future actions in the latter – were not appealed when

imposed. Restated, those sanctions are not before us on appeal.

Accordingly, we cannot review whether Judge Cummings abused his

discretion in imposing those sanctions.
3Should such a request be denied, Dominguez could, of course,

appeal.

6

Our research has revealed no cases in which our court, or any

other, has held that enforcement of a previously imposed sanction

– whether imposed by that court or another, whether appealed or not

– would result in the denial of access to the courts to a pro se

prisoner. It has revealed only one case of precedential value

addressing enforcement of another court’s unappealed sanction. In

Clark v. United States, No. 94-10899, 52 F.3d 1066 (5th Cir. 1995)

(unpublished precedential), the district court honored another

district court’s order that Clark pay a $50 fine before filing an

in forma pauperis civil rights action. As in the case at hand,

Clark had not appealed the sanction. Our court reviewed the order

imposing the sanction and simply “agree[d] that it [was] well worth

honoring”. Id. In the absence of analysis, this precedent does

not assist in our decision, other than to affirm what is obvious:

one district court may enforce another’s sanctions.

Regarding the question of whether, in this action, access to

the courts has been denied, Dominguez’s access was not denied;

instead, it was postponed. If he desires to proceed further with

this action, he can return to the Northern District of Texas and,

among other things, file a motion under Rule 60(b) of the Federal

Rules of Civil Procedure, requesting that Judge Cummings modify the

sanctions.3 Along this line, our court need not, and indeed should
7

not, reach the constitutional question of denial of access until

all other means of challenging the sanctions are foreclosed. Cf.

Ysleta Del Sur Pueblo v. Texas, 36 F.3d 1325, 1332 (5th Cir.) (“we

should not reach constitutional issues when a case can be resolved

on other grounds” (emphasis added)), cert. denied, 514 U.S. 1016

(1995). 

III.

In short, Judge Cobb did not abuse his discretion by

dismissing this action without prejudice. 

AFFIRMED