Summary Calendar CHARLES L. M., on behalf of his daughter, Susan R. M. v. Northeast Independent School District

*Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-5576
Summary Calendar
_____________________
CHARLES L. M., on behalf of his daughter,
Susan R. M.,
Plaintiff-Appellant,
v.
NORTHEAST INDEPENDENT SCHOOL DISTRICT, ET AL.
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(SA 89 CA1497)
_________________________________________________________________
June 4, 1993
Before KING, DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
This is the third time that this litigation has been before
us. See Charles L.M. v. Northeast Independent School District,
884 F.2d 869 (5th Cir. 1989); Susan R.M. v. Northeast Independent
School District, 818 F.2d 455 (5th Cir. 1987). On this third
appeal, this court is barraged with various pleadings and motions
filed by the plaintiff-appellant, Charles L. M., acting as next

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friend of his minor daughter, Susan R. M. We are also presented
with a motion requesting sanctions against Charles L. M. filed by
one of the appellees. We find that every argument made by the
appellant is meritless but, in consideration of his pro se
status, decline to impose sanctions.
I.
In 1985, Charles L.M., acting as next friend of his minor
daughter, Susan R.M., brought suit against Northeast Independent
School District (NEISD) and the Texas Education Agency (TEA)
"claiming that the Education of All Handicapped Children Act
(EAHCA) required [the defendants] to place his child in a
residential psychiatric hospital with an in-house education
program." Susan R. M., 818 F.2d at 457. This court affirmed the
district court's determination that Charles L. M. did not have
standing to bring the suit because Charles L. M. had previously
obtained from a Texas state court the appointment of the State of
Texas as his daughter's managing conservator. Id. The state
court also appointed an attorney ad litem. Id. This Court left
open a number of issues, including: i) the underlying EAHCA
claim, which could be prosecuted by Susan through her attorney ad
litem, ii) Charles L. M.'s right to recover possible damages
sustained before Susan's managing conservatorship, and iii)
Charles L. M.'s possible standing if -- after Susan turns
eighteen and, thus, loses her court-appointed managing
conservatorship -- he can show her to be incompetent. Id. at
458-59.

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Susan turned eighteen on August 18, 1987. Shortly
thereafter, Charles L. M. brought a second suit in his daughter's
behalf. The district court dismissed for insufficient service
and this court dismissed for untimely notice of appeal. Charles
L. M., 884 F.2d 869, 869 (5th Cir. 1989). In October 1989,
Charles L. M. once again filed suit on behalf of his daughter.
In this complaint, he alleged that the defendants violated EAHCA
and the Equal Protection Clause, violated state tort law, and
requested that various Texas education statutes should be
declared null and void to the extent that they conflicted with
the EAHCA. Charles L. M. asked for damages, a declaratory
judgment, and injunctive relief. He also asked for the district
court to restore his legal control over Susan from the time of
the state managing conservatorship until her eighteenth birthday
in 1987.
NEISD answered by asserting the defenses of mootness,
Charles L. M.'s lack of standing, the running of the statute of
limitations, res judicata, collateral estoppel, and Eleventh
Amendment sovereign immunity. TEA filed motions for dismissal
and for sanctions. The district court referred the case to the
magistrate judge for pre-trial matters. The magistrate judge
ruled on many of the motions, including plaintiff's motions for
default judgment. The magistrate judge recommended that the
case be dismissed, basing his ruling on a finding of res
judicata, Charles L.M.'s lack of standing, and the running of the
statute of limitations. The magistrate also recommended

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sanctions against Charles L. M. Charles L. M. filed timely
objections that disputed his lack of standing, the application of
res judicata, the application of Texas' two-year statute of
limitations for this suit, and the propriety of sanctions.
Among his many motions, Charles L. M. filed a motion for
permission to file supplemental pleadings, which the district
court treated as untimely objections to the magistrate report.
The district court, after de novo review, adopted the
portions of the magistrate's report recommending dismissal but
declined to impose sanctions. After timely notice of appeal was
filed, the parties filed various motions in this Court.
II.
i) The Merits
A. The District Court's Application of the Res Judicata Doctrine
In attacking the district court's order of dismissal,
Charles L. M. argues that the district court's ruling that his
claims were res judicata was inappropriate. In the first suit,
this court affirmed the district court's dismissal on standing
grounds. Susan R. M., 818 F.2d at 457. Standing is viewed as a
threshold jurisdictional issue and, therefore, the first suit was
not a final decision on the merits. We agree that it thus would
not support a dismissal on the basis of res judicata. See
Gregory v. Mitchell, 634 F.2d 205, 206-07 (5th Cir. 1981).
B. Does Charles L. M. Have Standing?

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As we observed in our prior decision, Charles L. M., by
consenting to Susan's managing conservatorship, relinquished the
right to assert any claims in her behalf while she remained a
minor. Susan R. M., 818 F.2d at 458. We also observed that,
after Susan R. M. turned eighteen, Charles L. M. would have no
standing unless he showed that Susan had been declared mentally
incompetent to bring her own lawsuit. See id. at 458-59; FED. R.
CIV. P. 17(c). Considering that Susan is now twenty-two years
old and has not been declared mentally incompetent, we agree with
the lower court that Charles L.M. has no standing to assert any
claims on his daughter's behalf that arose after her managing
conservator was appointed.
C. Claims That Arose Before the Appointment of Susan R. M.'s
Managing Conservator
Although his pleadings are unclear on this point, we will
assume that Charles L. M. also is claiming that he is entitled to
recover damages for claims that arose before the creation of the
managing conservatorship. See Susan R. M., 818 F.2d at 458
(leaving the pre-conservatorship claim open). If this is indeed
the case, we agree with the lower court that the statute of
limitations bars this claim. The conservatorship came into
existence in February 1986. Id. at 457. This Court uses a two-
year statute of limitations for EAHCA actions arising in Texas.
See Scokin v. Texas, 723 F.2d 432, 438 (5th Cir. 1984). Charles
L. M. argues that Scokin was decided wrongly. We observe that
"[i]n this circuit, one panel may not overrule the decision,

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right or wrong, of a prior panel in the absence of an intervening
contrary or superseding decision by the [C]ourt en banc or the
Supreme Court." Society of Separationists, Inc. v. Herman, 939
F.2d 1207, 1211 (5th Cir. 1991), cert. denied, 113 S.Ct. 191
(1992).
Charles L. M. further argues that Texas law adds two years
to the limitation to account for a claim arising during a
plaintiff's minority. This makes no difference in this case
because, as we previously decided, Charles L. M. does not have
standing to assert his adult daughter's claims, even ones that
arose while she was a minor.
D. Charles L. M.'s Plea that Susan R. M.'s Conservatorship Be
Retroactively Invalidated
As noted supra, Charles L. M.'s complaint asked the district
court to invalidate the managing conservatorship from 1986
through August 1987, when Susan turned eighteen and her
conservatorship ceased. The district court held that such relief
was beyond its jurisdictional power. Charles L. M. disagrees and
cites Christopher T. v. San Francisco Unified School Dist., 553
F.Supp. 1107, 1120-21 (N.D. Cal. 1982), for the proposition that
a federal court can invalidate the state's legal custody of a
minor whose parents relinquished their parental rights in order
for the child to receive needed educational and psychological
care. His reliance on that case is misplaced. Christopher T.
involved two minors. Id. at 1109-10. The court ordered legal
custody restored to the minors' parents. Id. at 1120-21. Susan

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is now twenty-two. The state's managing conservatorship ended
upon her eighteenth birthday. We are aware of no legal authority
that allows a federal court to retroactively invalidate a state
court-created managing conservatorship which is no longer in
existence, particularly when no federal constitutional basis has
been offered for such a drastic intrusion into the traditional
province of state courts.
E. Charles L. M.'s Invocation of Equitable Principles
Charles L. M. argues that "equitable considerations" provide
an avenue for his suit's success notwithstanding the numerous
legal obstacles in its path. We disagree. Charles L. M. simply
misunderstands the nature of equity. See United States v.
Coastal Refining & Marketing, Inc., 911 F.2d 1036, 1043 (5th Cir.
1990) ("A court in equity may not do that which the law
forbids.").
F. Was the Case Improperly Referred to the Magistrate?
Charles L. M. argues that the district court erred in
sending the case to the magistrate judge to rule on pretrial
matters without obtaining the consent of the parties. Charles L.
M. never objected to the district court's sending the case to a
magistrate judge. Therefore, this court reviews for plain error.
United States v. Paden, 908 F.2d 1229, 1237 (5th Cir. 1990),
cert. denied, 111 S.Ct. 710 (1991). We find no plain error. The
district court sent the case to the magistrate judge pursuant to

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1 Charles L. M. also argues that the district court erred in
failing to consider his motion for "judicial notice" of TEA's
motion to dismiss as not being a proper answer to the complaint.
Charles L. M. brought his motion pursuant to Rule 201(a) of the
Federal Rules of Evidence, which governs judicial notice of
"adjudicative facts." In view of the definition of "adjudicative
8
28 U.S.C. § 636(b)(1), a statute which does not require the
consent of the parties.
G. Charles L. M.'s Motion for Default Judgment and TEA's Response
to the Complaint
Charles L. M. argues that the district court and the
magistrate erred in not granting his motion for default judgment.
A defendant has twenty days to respond after the service of
summons and complaint. See FED. R. CIV. P. 6(a), 12(a). NEISD
received the summons and complaint on October 26, 1989, and filed
its answer on November 15, 1989. TEA received the summons and
complaint on October 27, 1989 and filed its Rule 11 and 12(b)(6)
motions on November 16, 1989. That is, both defendants responded
on the twentieth day following their respective receipts of the
complaint.
Rule 12 allows the defendant to assert the defense of a
failure to state a claim upon which relief can be granted as an
independent motion in response to a complaint and need not be a
part of an answer. See FED. R. CIV. P. 12(b). This is precisely
what TEA did when it filed its 12(b)(6) motion. Default judgment
is improper if a party is defending against suit. See FED. R.
CIV. P. 55(a). The district court thus did not err in denying
the motion for default judgment.1

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facts" found in the rule's advisory notes, we believe that what
Charles L. M. wanted the district court to notice judicially does
not qualify an adjudicative fact. See id. Advisory Committee's
Notes, subdivision (a). Moreover, Charles L. M. is simply
incorrect in his argument that TEA's Rule 12(b)(6) motion to
dismiss is not a proper response to a complaint.
9
H. Charles L. M.'s Motion to Recuse the Magistrate Judge
Charles L. M. argues that the district court erred in
denying his motion to recuse the magistrate judge. After the
magistrate judge sent the case back to the district court,
Charles L. M. filed a motion to have the magistrate recused from
the case because this magistrate was the law clerk for the
district court judge who presided over Charles L. M.'s first
lawsuit in 1986.
The federal judicial recusal statute provides that "[a]ny
justice, judge, or magistrate of the United States shall
disqualify himself in any proceeding in which his impartiality
might reasonably be questioned." 28 U.S.C. § 455(a). Nothing in
Charles L. M.'s allegation would lead a reasonable person to
question the impartiality of this magistrate judge. Moreover,
this court imputes a timeliness requirement onto a § 455 request.
See Delesdernier v. Porterie, 666 F.2d 116, 121-123 (5th Cir.),
cert. denied, 459 U.S. 839 (1982). Because Charles L. M. filed
his motion after the magistrate judge made his recommendation and
sent the case back to the district court, this court can view the
motion as "too tardily made for . . . consider[ation] . . . now."
Id. at 123 (footnote omitted).

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I. Were Proper Findings of Fact Made?
Charles L. M. argues that the district court and the
magistrate judge erred in failing to make findings of fact within
their orders. He does not identify or specify which orders are
allegedly faulty in this respect. The Federal Rules of Civil
Procedure provide that "[f]indings of fact and conclusions of law
are unnecessary on decisions of" Rule 12 motions. See FED. R.
CIV. P. 52(a) & (c). This case was dismissed pursuant to a Rule
12 motion. Thus, no findings of fact were required in any event.
J. Did the District Court Err in Failing to Consider Charles L.
M.'s "Counterclaim Supplemental Pleadings"?
Charles L. M. argues that the district court erred in
refusing to consider in its final order his motions to file
"counterclaim supplemental pleadings." The district court
treated these motions as untimely objections to the magistrate
judge's report and recommendations. "A district court . . . has
the discretionary authority to allow a party to file objections
after the ten-day period." Cay v. Estelle, 789 F.2d 318, 322
(5th Cir. 1986) (citing to FED. R. CIV. P. 6(b)).
Charles L. M.'s motions were brought pursuant to Rule 15(d)
of the Federal Rules of Civil Procedure, which governs
supplemental pleadings, not objections to a magistrate's proposed
findings and conclusions. A district court must freely permit
amendments "unless the ends of justice require denial." James v.
Sadler, 909 F.2d 834, 836 (5th Cir. 1990); see also FED. R. CIV.
P. 15, Advisory Committee's Notes (1963 amendments).

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We believe that any error was harmless because the substance
of what Charles L. M. was trying to add to the record would not
have made a difference to the result reached by the district
court. See FED. R. CIV. P. 61 (harmless error). Charles L. M.'s
first "counterclaim-supplemental motion" made the argument that
this third lawsuit and the second lawsuit were simply amended
complaints which relate back to his original complaint filed in
the first lawsuit. This argument is frivolous. The second
motion argued that a Texas statute provides Charles L. M.'s
daughter a tolling of the statute of limitations for the time she
was in a psychiatric hospital. This is irrelevant because, as we
previously have held, Charles L. M. does not have standing to
assert his daughter's rights.
K. Substitution of Counsel
Charles L. M. argues that Rule 12(a) provides twenty days
for an opposing party to respond to a motion and that the
district court erred in granting TEA's motion to substitute
counsel without affording Charles L. M. twenty days to respond.
Charles L. M. also filed a motion to strike TEA's motion under
Rule 12(f) after the district court granted the motion.
Rule 12(a) expressly applies to pleadings; a motion to
substitute counsel is in no way connected with the pleadings.
See FED. R. CIV. P. 7(a) & (b), 12(a). Any possible error that
the district court might have made by granting TEA's motion would

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2 Charles L. M.'s related motions to quash NEISD's brief and
to compel the clerk of the court to file his motion to quash
NEISD's brief have previously been denied. See Charles L. M. v.
12
be harmless because Charles L. M.'s substantive rights were not
affected. See FED. R. CIV. P. 61.
L. Pro Se Pleadings
Charles L. M. argues that the district court did not
construe liberally his pro se complaint and motions. He is
correct that a court must construe liberally the legal papers of
a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520
(1972). Our review of the record gives no indication that the
district court or the magistrate judge did not afford Charles L.
M.'s pleadings the requisite solicitude.
ii) Motions
A. Charles L.M.'s Motion to Quash TEA's Brief
Pending before this Court is Charles L. M.'s motion to quash
TEA's brief. In this motion, Charles L. M. argues that, because
TEA did not raise the defense of Eleventh Amendment sovereign
immunity in the court below, as it does on appeal, TEA is
prohibited from raising this issue for the first time in this
court. We note that the Supreme Court has held that "the
Eleventh Amendment defense sufficiently partakes of the nature of
a jurisdictional bar so that it need not be raised in the trial
court." Edelman v. Jordan, 415 U.S. 651, 677-78 (1974).
Therefore, we deny Charles L. M.'s motion.2

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Northeast Indep. School Dist., No. 92-5576 (5th Cir. Aug. 28,
1992) (one-judge order); id. (5th Cir. July 31, 1992) (one-judge
order).
Although the Clerk of the Court has twice returned it to
Charles L. M. on the ground that it was moot, for purposes of
finality we herein deny Charles L. M.'s "Motion to Compel the
Court Clerk to File His Previously Filed Pleading." The
"previously filed pleading" to which Charles L. M. refers was
actually his motion to quash NEISD's response to Charles L. M.'s
motion to quash NEISD's brief. Charles L. M. filed the most
recent motion to quash on the same day that this court denied
Charles L. M.'s motion to quash NEISD's brief. Thus, Charles L.
M.'s most recent motion to quash was in fact moot and was
properly rejected by the Clerk of the Court.
13
B. Charles L. M.'s Motion to Supplement His Appellate Brief
Also pending before this Court is Charles L. M.'s motion for
leave to file a supplemental brief. He contends that a
supplemental brief is necessary to rebut appellees' arguments
regarding standing. He believes that he has standing to assert
his daughter's claims based upon Erie R.R. Co. v. Fritsch, 72
F.2d 766, 767 (3rd Cir.), cert. denied, 293 U.S. 620 (1934), a
case dealing with the appointment of a next friend under New
Jersey law. That case is inapposite. We deny Charles L. M.'s
motion.
C. Motions for Sanctions
Pending before this Court are NEISD's motion for sanctions
against Charles L. M. and Charles L. M.'s motions for sanctions
against counsel for NEISD. Charles L. M. argues that NEISD's
counsel violated the Texas Rules of Professional Conduct in
counsel's response to appellant's motion to file a supplemental

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brief. Specifically, Charles L. M. claims that NEISD's counsel
"misrepresented the law" in his response to Charles L. M.'s
appellate motion. We have reviewed all of NEISD's legal papers
and disagree with Charles L. M. that counsel misrepresented the
law, intentionally or otherwise. We thus deny Charles L. M.'s
request for sanctions.
NEISD argues that we should award it sanctions in view of
the frivolous nature of Charles L. M.'s most recent appeal in
this seemingly never-ending litigation. "An appeal is frivolous
if the result is obvious or the arguments of error are wholly
without merit." Coghlan v. Starkey, 852 F.2d 806, 811 (5th Cir.
1988). Although we agree that Charles L. M.'s appeal is wholly
frivolous, we decline to impose sanctions in view of Charles L.
M.'s pro se status. See Clark v. Green, 814 F.2d 221, 223 (5th
Cir. 1987) (noting this court's caution in sanctioning pro se
litigants). We do note, however, that should Charles L. M. file
another frivolous lawsuit or appeal involving the same general
subject matter involved in the last three rounds of this
litigation, we will not indulge him in any further solicitude
regarding sanctions.
III.
For the foregoing reasons, we AFFIRM the judgment of the
district court in all respects and DENY every motion filed by
Charles L. M. in this court. We also DENY Charles L. M. and
NEISD's motions for sanctions.

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