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United States Court of Appeals, Fourth Circuit
United States Court of Appeals, Fourth Circuit
2d 692
Unpublished Disposition
Appeal from the United States District Court for the Southern District of
West Virginia, at Charleston. Dennis Raymond Knapp, Senior District
Judge. (CA-88-578-2)
Pierre E. Dostert, appellant pro se.
Ricklin Brown, Bowles, Rice, McDavid, Graff & Love, Lonnie Carl
The long history of Dostert's claims against various justices of the Supreme
Court of Appeals of West Virginia is set out in this Court's opinion remanding
the matter to the district court and it need not be repeated in detail here. Briefly,
when we last considered this action we found that Dostert's underlying claim
was barred both by the doctrine of res judicata and by judicial immunity.
Dostert v. Harshbarger, No. 89-2453, slip op. at 6-9 (4th Cir. July 18, 1990)
(unpublished). We could not find, however, that Rule 11 sanctions were
appropriate based on the district court's findings. Nevertheless, we noted that
Dostert's actions in pursuing the suit were disturbing and found substantial
evidence in the record to support a finding that Dostert had acted in bad faith,
which is sufficient to invoke the district court's inherent powers to impose
sanctions. See F.D. Rich Co. v. United States ex rel. Indus. Lumber Co., 417
U.S. 116, 129 (1974). We therefore remanded the action for the district court to
make whatever findings regarding bad faith and/or harassment by Dostert might
be warranted by the record. Dostert, slip op. at 12-14.
On remand, the district court found that Dostert and his attorneys had acted in
bad faith and imposed the same amount of attorneys' fees that it had previously
ordered. Our review of the record and the district court's opinion discloses that
this appeal is without merit. Accordingly, we affirm on the reasoning of the
district court. Dostert v. Harshbarger, CA-88-578-2 (S.D.W.Va. Oct. 23, 1990).
4
Appellees have filed a motion in this Court seeking damages for delay pursuant
to Fed.R.App.P. 38 against Dostert. Dostert is proceeding pro se in this appeal.
Rule 38 states that "[i]f a court of appeals shall determine that an appeal is
frivolous, it may award just damages and single or double costs to the
appellee." An appeal is frivolous when the result is obvious or the arguments
of error are wholly without merit. See In re Becraft, 885 F.2d 547, 548 (9th
Cir.1989).
Dostert contends on appeal that the district court failed to give him proper
notice and opportunity to be heard after the case was remanded. This argument
is wholly without merit because the record shows that he had notice from the
defendants' motions for sanctions and from this Court's previous opinion.
Dostert also had more than one opportunity to be heard on the matter of
sanctions. Before the remand the district court held a hearing on the record.
Following remand, a status conference was held and Dostert was given an
opportunity to file proposed findings of facts and conclusions of law, which he
failed to do. An evidentiary hearing was not required after remand. See Oliveri
v. Thompson, 803 F.2d 1265, 1280 (2d Cir.1986), cert. denied, 480 U.S. 918
(1987). Dostert was given the process he was due prior to the district court's
imposition of sanctions.
Dostert's other arguments on appeal simply attack this Court's and other courts'
decisions finding that his claim is barred by res judicata and judicial immunity.
These arguments are also wholly without merit and an obvious attempt to
relitigate already decided issues.1 This appeal is frivolous.
AFFIRMED.