Gabriel v. City of Plano

              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT


                            No. 99-40928
                          Summary Calendar


MARK HARRY GABRIEL,
                                          Plaintiff-Appellant,
                               versus

CITY OF PLANO; ET AL
                                        Defendants,
CITY OF PLANO; MARK HUNT, in his official
capacity as City of Plano police officer;
TERRY PAULEY, in his official
capacity as City of Plano Police Department;
ROBERT LEITZ, in his official capacity as
City of Plano police officer,
                                        Defendants-Appellees.
                     _______________________

                             No. 00-40021
                           Summary Calendar
                       _______________________

MARK HARRY GABRIEL,
                                          Plaintiff,
                               versus
CITY OF PLANO; ET AL
                                        Defendants,
CITY OF PLANO; MARK HUNT, in his official
capacity as City of Plano police officer;
TERRY PAULEY, in his official capacity
as City of Plano Police Dept;
ROBERT LEITZ, in his official capacity
as City of Plano police officer,
                                        Defendants-Appellees,
                              versus
BRUCE W. GREEN; BRIAN FAHLING; MICHAEL J.
DEPRIMO; BRYAN J. BROWN; PHIL PRESCOTT,

                                          Appellants.




          Appeals from the United States District Court
                    For the Eastern District of Texas
                              (4:96-CV-362)

                               June 13, 2000


Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     These appeals concern sanctions issued pursuant to 28 U.S.C.

§ 1927 against the attorneys of the plaintiff, Mark Harry Gabriel.

Because we find that the district court’s awards were not an abuse

of discretion, we AFFIRM the awards.

     Gabriel brought an action under 42 U.S.C. § 1983 against the

City of Plano, the mayor, and several police officers for alleged

abridgements of his right to free speech.            The police had removed

Gabriel, an anti-abortion protester, from a public area near a

local high school.

     The litigation apparently became uncivil early on.                        The

behavior by Gabriel’s counsel relevant to this appeal included

repeated   requests    for    document     discovery;      the   filing   of    an

opposition     to   Plano’s   motion   for   leave    to    designate     expert

witnesses; and the filing of disciplinary charges against one of

the attorneys for Plano. Two issues also arose regarding allegedly

frivolous claims: Gabriel’s attorneys’ failure to dismiss Plano’s

mayor, who had been sued only in his official capacity and had no


     *
        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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involvement with the incident; and the failure to abandon an

excessive force claim until the first day of trial.

      After a bench trial in which the district court found the

claims to be without merit, the defendants moved for sanctions for

16 different acts by Gabriel’s attorneys.                The district court

granted the motion regarding six of the alleged acts, for a total

sanction of $52,820.50.         The court also noted that fees were

available for the City’s preparation of the motion, and after the

City sought clarification of an amount, the court awarded $15,000

for preparation time.       Gabriel timely appealed both awards.

      We first address whether we may hear this appeal on behalf of

all   the   appellants.     While   the    first     appeal   was   brought   in

Gabriel’s name, the appeal is actually on behalf of his five

attorneys.    Even if a notice of appeal does not list the parties

who   actually   intend    to   appeal,    it   is    sufficient    if   it   is

objectively clear that a party intended to appeal.             See FED. R. APP.

P. 3(c) advisory committee’s note to 1993 Amendments (2000).                  In

Garcia v. Wash, we held that a notice of appeal of sanctions was

sufficient where only the attorney, not the litigant himself,

received sanctions.       20 F.3d 608, 610 (5th Cir. 1994).

      We find that it is clear that all of Gabriel’s attorneys

intended to appeal the order. The district court’s sanctions order

does not distinguish among them.          As Gabriel was not a sanctioned

party, it is obvious that his attorneys and not Gabriel are the

actual appellants.

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      Turning to the merits, we find no abuse of discretion in the

district court’s awards of sanctions.   Sanctions under § 1927 are

allowed for actions that are both unreasonable and vexatious.

See Edwards v. General Motors Corp., 153 F.3d 242, 246 (5th Cir.

1998). The district court’s account enjoys factual support and its

legal basis was not in error.     Moreover, it set forth detailed

reasons for each of the sanctions and awarded amounts based on an

itemized motion filed by Plano.      That it rejected sanctioning

Gabriel’s attorneys for most of the complained-of conduct indicates

that it sanctioned them only when § 1927 sanctions were required.

      Gabriel’s attorneys raise no specific challenge to the award

for the preparation of the City’s motion, and we find no error in

it.

      AFFIRMED AS TO BOTH APPEALS.




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