United States District Court, S.D. Texas, Galveston Division
ORDER IMPOSING SANCTIONS
C. Hanks Jr. United States District Judge
December 22, 2017, the Court dismissed the habeas petition
filed by Marcos Lopez Ortiz as an unauthorized successive
petition. On January 30, 2019, the Court of Appeals denied a
certificate of appealability and denied leave to proceed
in forma pauperis on appeal. The appellate
court also issued a sanctions warning:
Ortiz has challenged the validity of his Texas convictions in
federal habeas proceedings on five prior occasions without
success, and this court previously warned him that frivolous,
repetitive, or otherwise abusive filings would invite the
imposition of sanctions and instructed him to withdraw any
frivolous, repetitive, or otherwise abusive filings that may
be pending before this court. In re Ortiz, 18-40572,
18 (5th Cir. Aug. 27, 2018) (unpublished). He has failed to
heed this warning. Accordingly, Ortiz is again CAUTIONED that
filing any future frivolous, repetitive, or otherwise abusive
challenges to this conviction or sentence in this court or
any court subject to this court's jurisdiction will
subject him to additional and progressively more severe
sanctions. He should review any pending motions and appeals
and withdraw any that are frivolous or repetitive, or
sanctions will be imposed.
(Dkt. 14, at 2 (Appeal No. 18-40091)).
the appellate court ruling and sanctions warning, Ortiz filed
a frivolous “nunc pro tunc motion for production of
records” (Dkt. 15), which the Court denied (Dkt. 16).
Ortiz then filed a frivolous “nunc pro tunc motion for
review” (Dkt. 18), which the Court also denied (Dkt.
19). Ortiz simultaneously filed the same motions in another
closed habeas action, Civil Action No. 18-127.
then filed a second notice of appeal in this case,
challenging the Court's denial of his “nunc pro
tunc motion for review” (Dkt. 20 (Appeal No.
19-40669)). He also filed a motion for leave to appeal in
forma pauperis (Dkt. 23) and a motion for entry of order
(Dkt. 26). Because the courts repeatedly have rejected
Ortiz's arguments and he now appeals from the denial of a
frivolous motion, the Court determines that the appeal is not
taken in good faith. See McGarrah v. Alford, 783
F.3d 584, 584 (5th Cir. 2015) (“[a]n appeal is taken in
good faith if it raises legal points that are arguable on the
merits and thus is nonfrivolous”).
have inherent authority to sanction litigants for abusive
conduct. See Chambers v. NASCO, Inc., 501 U.S. 32
(1991); In re Stone, 986 F.2d 898, 902 (5th Cir.
1993) (courts possess the inherent power “to protect
the efficient and orderly administration of justice, ”
which includes “the power to levy sanctions in response
to abusive litigation practices”) (citations omitted).
Petitioner continues to file motions that are frivolous,
abusive, and in bad faith, despite an explicit sanction
warning from the Fifth Circuit and other courts.
Court now ORDERS as follows:
1. The Court CERTIFIES that Ortiz's
second appeal (Appeal No. 19-40669) is not taken in good
faith for purposes of Rule 24(a)(3) of the Federal Rules of
Appellate Procedure. Petitioner's motion for leave to
appeal in forma pauperis (Dkt. 23) is
DENIED. His motion for entry of order (Dkt.
26) is DENIED as moot.
2. Although this Court has certified that the appeal is not
taken in good faith, the applicant may challenge this finding
pursuant to Baugh v. Taylor, 117 F.3d 197 (5th Cir.
1997), by filing a separate motion to proceed in forma
pauperis on appeal with the Clerk of Court, United
States Court of Appeals for the Fifth Circuit, within
thirty (30) days of the date of this order.
If Ortiz so moves to proceed on appeal in forma
pauperis, he is not assessed an initial filing fee.
3. Any further motions or documents filed in this closed case
or in other closed cases, including Civil Action No.
3:18-127, may be STRICKEN without further
order from the Court.
4. Due to the petitioner's clear record of frivolous
filings, his failure to comply with court orders, his
persistent abuse of judicial resources, the district
court's 2013 sanctions order, and the appellate
court's sanctions warning in this case, the Court
SANCTIONS Marcos Lopez Ortiz in the amount
of $75.00. Officials with the Inmate Trust Fund are directed
to impose a HOLD on the trust fund account
belonging to Marcos Lopez Ortiz (TDCJ # 01049113) and to
collect this amount, in full or in part, as soon as funds are
available. Until his sanction is paid, Ortiz may not file
any civil action, petition or complaint in this district
without written permission from a judicial officer. The
Clerk of Court is INSTRUCTED to
administratively close any civil action filed by Ortiz that
does not comply with this order or any previous sanction.
Clerk will send a copy of this order to the parties and will
also provide a copy of this order to (1) the TDCJ - Office of
the General Counsel, Capitol Station, P.O. Box 13084, Austin,
Texas, 78711, Fax: 512-936-2159; and (2) the Inmate Trust