PERRY v. HOLMES
United States Court of Appeals, Fifth Circuit
272 Fed. Appx. 278
Perry argues that he was denied access to the courts becausе Anthony Holmes, a prison library supervisor, would not schedule a face-to-face meeting with another inmate to support ongoing litigation. Prisoners have a constitutional right to access the courts. Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). Interference with the right is actionable under § 1983 only where the inmate demonstrates “actual injury stemming from defendants’ unconstitutional conduct.” Chriceol v. Phillips, 169 F.3d 313, 317 (5th Cir.1999). Perry has not shown that Holmes hindered his ability to file a nonfrivolous legal claim. See Christopher v. Harbury, 536 U.S. 403, 414-22, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002); Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996).
Perry argues that the Texas Department of Criminal Justice-Institutional Division and the University of Texas Medical Branch were responsible for the harassment and retaliation he experienced because of his legal activities. The Eleventh Amendment “bars suits in federal court by citizens of a state against their own state or a state agency or department.” Richardson v. Southern Univ., 118 F.3d 450, 452 (5th Cir.1997) (intеrnal quotation marks omitted). Perry has not shown that the district court erred in dismissing these claims as frivolous.
For the first time on appeal, Perry has added new defendаnts and raised new claims in addition to challenging the district court‘s dismissal of the claims raised below. The new claims will not be considered. See Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Disc. Ctrs., Inc., 200 F.3d 307, 316-17 (5th Cir.2000).
Perry‘s appeal is without arguable merit and is frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.1983). Because the appeal is frivolous, it is dismissed. See 5th Cir. R. 42.2.
The dismissal of this appеal as frivolous counts as a strike under
APPEAL DISMISSED; SANCTION WARNING ISSUED.
Federal Insurance Company; Peoples Financial Corporation; Peoples Bank of Biloxi, Intervenors-Appellants v. Ralph Angelo SEYMOUR; also known as Sonny Seymour, Defendant-Aрpellee; Stifel, Nicolaus & Company Inc., Garnishee-Appellee; Judy Seymour, Interested Party-Appellee.
No. 07-60511.
United States Court of Appeals, Fifth Circuit.
April 16, 2008.
Frank W. Trapp, Phelps Dunbar, Jackson, MS, for Defendant-Appellee.
Chester D. Nicholson, Nicholson & Nicholson, Gulfport, MS, for Defendаnt-Appellee/Interested Party-Appellee.
Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Appellants challenge the district court‘s ruling that only half of the joint bank account of Ralph and Judy Seymour (husband and wife) is subject to a pending garnishment. At issue is whether it was error to apply Mississippi‘s equitable-distribution system for marital property to the garnishment proceeding, providing Judy Seymour an ownership interest in the joint account. VACATED AND REMANDED.
I.
Ralph Seymour pleaded guilty to bank fraud, in violation of
The United States’ application for writ of garnishment upon Ralph Seymour‘s property was servеd on Stifel, Nicholas & Company, Inc. Stifel answered that $112,473.92 was held in the joint account of Ralph and Judy Seymour.
Judy Seymour filed an objection to the garnishment, clаiming to be the equitable owner of half of the account‘s funds. Intervenors moved for leave to intervene, and for turnover of the funds being held pursuant to the writ of garnishment.
Following the district court‘s ordering the turnover, but then vacating that order, Intervenors again sought turnover. Judy Seymour claimed, under Mississippi law, an equitable interest in half of the funds, based on her marriage to Ralph Seymour and the funds’ being accumulated during the course of their marriage. She asserted she particiрated in no wrongdoing, and reaped no benefit from that of her husband.
Consistent with Judy Seymour‘s position, the district court denied the turnover motion in part, and granted it in part. It ordered half of the funds to be turned over and half to remain in the joint account for the benefit of Judy Seymour.
II.
Appellants contend the district court аbused its discretion in ruling Judy Seymour, under equitable principles, owns half of the funds, rendering them not subject to garnishment. “While the entry of a turnover order is reviewed for an abuse of discretion, a district court necessarily abuses its discretion if its conclusion is based on an erroneous determination of the law.” Af-Cap, Inc. v. Republic of Congo, 462 F.3d 417, 425 (5th Cir.2006), cert. dismissed, --- U.S. ---, 127 S.Ct. 1511, 167 L.Ed.2d 247 (2007). It goes without saying thаt state-law determinations are reviewed de novo; in other words, no deference is accorded the district court‘s application of Mississippi law. Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991); e.g., Af-Cap, 462 F.3d at 425.
Under thе Federal Debt Collection Procedures Act, the United States may garnish a debtor‘s jointly-owned property to enforce a criminal restitution order tо the extent allowed by the law of the State where the property is located.
Under Mississippi law, a joint account is prima facie subject to garnishment. Delta Fertilizer, Inc. v. Weaver, 547 So.2d 800, 803 (Miss.1989) (citation omitted); see also Deposit Guar. Nat‘l Bank v. Pete, 583 So.2d 180, 183 (Miss.1991) (citations omitted); Cupit v. Brooks, 237 Miss. 61, 112 So.2d 813 (1959). When claiming a portion of that account exempt from garnishment, the burden is on a joint owner to establish the portion of the funds shе owns. E.g.,
Judy Seymour does not claim she contributed to, or was given, the account‘s funds. Instead, she claims only an equita-
As Judy Seymour conceded at oral argument here, however, Ferguson‘s equitable principles have not been applied by Mississippi courts to garnishment proceedings. Ferguson “devised [a] method[] to divide marital assets at divorce“, id. at 925, and has not been applied outside thаt context. Accordingly, it was error for the district court to apply Ferguson to conclude Judy Seymour had equitable title to half the funds. Moreover, even if Ferguson‘s equitable principles could be applied to a garnishment proceeding, Ferguson advises: “no right to property vests by virtue of the marriage relationship alonе prior to entry of a judgment ... pursuant to dissolution of the marriage“. Id. at 928. In sum, Judy Seymour has no vested right in the joint account solely by virtue of her marriage to Ralph Seymour.
As stated, whether the joint-owner has established ownership of the account is determinative under Mississippi law. E.g., Delta Fertilizer, 547 So.2d at 803. Ralph and Judy Seymour‘s joint account was opened with shares of stock belonging to both of them, and was funded by the liquidation of Ralph Seymour‘s retirement account. Judy Seymour has not produced any еvidence as to the value of her stock when the account was opened, or any other contributions she made. Nor has she provided evidenсe that Ralph Seymour gave any funds to her as a gift. Indeed, she claims no legal interest in the funds. Again, her claim rests solely on the marital relationship and equity.
Therefore, under Mississippi law, Judy Seymour did not establish ownership of half of the joint account‘s funds. Accordingly, all of those funds are subject to the pending garnishment.
III.
For the foregoing reasons, the judgment is VACATED, and this matter is REMANDED to district court for entry of judgment consistent with this opinion.
VACATED AND REMANDED.
Renee S. HARTZ, MD, Plaintiff-Appellee, v. ADMINISTRATORS OF the TULANE EDUCATIONAL FUND; University Healthcarе System L.C. (Columbia/HCA), doing business as Tulane University Hospital and Clinic, Defendants-Appellants.
No. 07-30506.
United States Court of Appeals, Fifth Circuit.
April 16, 2008.