Commercial Litigation and Arbitration

FRAP 38 Sanctions on Pro Se Require (1) Prior Judicial Warning Claims Are Frivolous and (2) Awareness by Pro Se of Ample Authority Holding Squarely against Him or Her — § 1927 Available against Pro Se?

Simmons v. Methodist Hosp. of Dallas, 2015 U.S. App. LEXIS 21505 (5th Cir. Dec. 10, 2015):

After Methodist Hospital terminated him, Jason Simmons brought an employment discrimination lawsuit. The district court granted summary judgment, and Simmons did not appeal. Two years later, Simmons brought a second lawsuit against Methodist, the instant case in which he is pro se, asserting a Title VII retaliation claim as well as several state law claims all arising from the same set of events underlying the first suit. The district judge dismissed all of his claims at the pleading stage on limitations grounds. Simmons contends in his appeal that the district court should have applied equitable tolling.

***That leaves Methodist's motion for sanctions. Methodist first requests sanctions under Federal Rule of Appellate Procedure 38, which authorizes an appellate court to impose sanctions against an appellant who prosecutes a "frivolous appeal." It also moves for sanctions pursuant to 28 U.S.C. § 1927, which prohibits those "admitted [*6]  to conduct cases in any court" from "unreasonably and vexatiously" multiplying the proceedings in any case.5

5   We note that this court has not yet addressed whether a pro se litigant can be subject to sanctions under section 1927 and need not do so today. Even if section 1927 does apply to pro se litigants, we would not impose sanctions under the facts of this case.

Although we demand a higher degree of responsibility from members of the bar, pro se litigants are not free to clutter the court's dockets with baseless suits. Stelly v. Comm'r of Internal Revenue, 761 F.2d 1113, 1116 (5th Cir. 1985). We have therefore held that sanctions on pro se litigants are appropriate if a court previously warned that their claims are frivolous and they are aware of "ample legal authority holding squarely against them." Id.

Simmons, however, received no prior warning from the district court, which denied Methodist's motion for Rule 11 sanctions. His arguments on appeal, which focused on the tolling issue, are not so baseless as to warrant the imposition of sanctions without any prior warning from a court. See Moody v. Baker, 857 F.2d 256, 258 (5th Cir. 1988) ("The imposition of a sanction without a prior warning is generally to be avoided.") (per curiam). We therefore DENY Methodist's motion for sanctions. But because we AFFIRM the district court's judgment, [*7]  costs are taxed against Simmons consistent with the Federal Rule of Appellate Procedure 39(a)(2).


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