Case: 12-50664 Document: 00512318067 Page: 1 Date Filed: 07/23/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 23, 2013
No. 12-50664
Summary Calendar Lyle W. Cayce
Clerk
JOSE CRISTOBAL CARDONA,
Plaintiff-Appellant
v.
BLANCA S. BRIONES; WILLIAM G PUTNICKI; BENJAMIN D. SEAL;
JOHNNY SUTTON; SAMUEL FRED BIERY; WALTER S. SMITH, JR.; ALIA
MOSES; SOFIA RAMIREZ; JOSE CONTRERAS; ROBERT CADENA; U.S.
MARSHALL ARTHUR THOMAS,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:11-CV-781
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Cristobal Cardona, federal prisoner # 40869-080, appeals from the
dismissal of his action brought pursuant to Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Cardona challenged the
actions of judges of the district court, judicial employees, federal prosecutors,
and a federal marshal in numerous cases, including his own criminal case and
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 12-50664
his 28 U.S.C. § 2255 proceeding. Cardona also appeals from the denial of various
postjudgment motions following the dismissal of his action. The defendants
move for dismissal of the appeal, striking of the brief, summary affirmance or,
in the alternative, for an extension of time to file a brief. The defendants’ motion
is denied.
First, Cardona contends that the district court erred and violated his
constitutional right to the waiver of filing fees by denying him leave to proceed
in forma pauperis (IFP) on appeal. He is barred from proceeding IFP. See
Cardona v. Tuite, 258 F. App’x 643, 644 (5th Cir. 2007).
Second, Cardona contends that the district judge erred by failing to recuse
himself. He has identified no basis for recusal. See Liteky v. United States, 510
U.S. 540, 556 (1994).
Third, Cardona argues that the district court abused its discretion by
denying his motion for relief from a void judgment pursuant to Rule 60(b)(4) of
the Federal Rules of Civil Procedure. The proper vehicle for a Rule 60(b)(4)
challenge as to the dismissal of Cardona’s previous action as void is a Rule
60(b)(4) motion in that action itself. See Rule 60(b); Bankers Mortg. Co. v.
United States, 423 F.2d 73, 77-78 (5th Cir. 1970). Cardona cannot demonstrate
any harm arising from the district court’s order striking his Rule 60(b)(4) motion
or his second motion for recusal. See FED. R. CIV. P. 61.
Fourth, Cardona contends that the district court erred by dismissing his
complaint pursuant to 28 U.S.C. § 1915A. However, Cardona failed to brief
whether the district court erred by finding that he lacks standing to raise the
rights of Jesse Ramirez, Victor Esquivel, or Javier Guerrero. He has abandoned
that dispositive issue for appeal. See In re Municipal Bond Reporting Antitrust
Litigation, 672 F.2d 436, 439 n.6 (5th Cir. 1982). The action is otherwise barred
by immunity, see Mireles v. Waco, 502 U.S. 9, 11-12 (1991); Boyd v. Biggers, 31
F.3d 279, 285 (5th Cir. 1994), and by Heck v. Humphrey, 512 U.S. 477, 486-87
(1994). See Stephenson v. Reno, 28 F.3d 26, 27-28 (5th Cir. 1994).
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Fifth, Cardona contends that the district court erred by failing to allow
him to amend his complaint to repair a deficient claim and without holding a
hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). Any
amendment of the complaint would have been futile, see Stripling v. Jordan
Prod. Co., LLC, 234 F.3d 863, 872-73 (5th Cir. 2000), and there was no need to
develop Cardona’s claims, cf. Spears, 766 F.2d at 181-82 (holding that a hearing
or questionnaire may be used to flesh out a plaintiff’s claims).
The appeal is without arguable merit and is frivolous. See Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983). The appeal is dismissed. See 5TH
CIR. R. 42.2.
Cardona achieved three-strike status for purposes of 28 U.S.C. § 1915(g)
in 2007. Cardona, 258 F. App’x at 644. We warned him in 2010 “that future
frivolous collateral challenges to his conviction or our opinion on direct appeal
may result in sanctions against him.” Cardona v. Beeman, 382 F. App’x 376, 378
(5th Cir. 2010). Yet some of the claims in the Bivens action implicated the
validity of his conviction. Moreover, Cardona makes conclusional, unsupported
allegations of conspiracy and corruption against numerous district court judges.
Also, Cardona is a prolific litigator. See, e.g., Cardona, 382 F. App’x at 376-78
(challenging this court’s decision on direct appeal through a habeas corpus
petition under 28 U.S.C. § 2241); Cardona, 258 F. App’x at 643 (challenging
order of prison guard to wear a baseball hat with the bill facing the front);
Cardona v. Menifee, No. 07-30483, 2007 WL 4371736, *1 (5th Cir. Dec. 11, 2007)
(unpublished) (challenging the dismissal of a Bivens action based on his attempt
to litigate as the next friend of other prisoners); United States v. Cardona, No.
11-50683, 1-2 (5th Cir. Sept. 11, 2012) (unpublished order) (denying a COA and
IFP status to challenge district court’s sanction order); United States v. Cardona,
Nos. 11-50562 & 11-50683, 1-4 (5th Cir. Feb. 16, 2012) (unpublished order)
(denying a COA and leave to proceed IFP as to one § 2255 motion seeking
reconsideration in a series of postjudgment motions; granting COA and IFP in
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part as to one postjudgment motion for a limited remand to provide Cardona
with notice that sanctions were possible). He has been undeterred by the federal
three-strike sanction of § 1915(g), and he initially filed the current action in
state court.
Therefore, IT IS ORDERED that Cardona is fined $1,000, payable to the
clerk of this court. IT IS FURTHER ORDERED that, until that fine is paid, the
clerk of this court and the clerks of the courts subject to the jurisdiction of this
court shall not accept any pro se civil appeals or initial civil pleadings from
Cardona without the advance written permission of a judge of the forum court.
Cardona remains subject to the sanction bar of § 1915(g). Finally, Cardona
should move to withdraw any pending matters that are frivolous.
APPEAL DISMISSED. MOTION DENIED. SANCTION IMPOSED.
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