Boykin v. Entergy Operations ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60258
(Summary Calendar)
WILLIAM BOYKIN, Etc., ET AL.,
Plaintiffs,
WILLIAM BOYKIN, Individually and on behalf of all others similarly
situated,
Plaintiff-Appellant,
versus
ENTERGY OPERATIONS, INC., ET AL.,
Defendants,
ENTERGY OPERATIONS, INC; DON HINTZ; CHARLES R. HUTCHINSON; MIKE
BAKARICH,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
(5:98-CV-29-BN)
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October 6, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant William Boykin, pro se, appeals a summary
judgment dismissing discrimination claims against his employer,
Entergy Operations, Inc., and three individuals (collectively
*
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that this opinion should not be published and is not precedent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.
“Entergy”). Boykin sued under 42 U.S.C. § 2000e et seq. (“Title
VII”), 42 U.S.C. § 1981, and 42 U.S.C. § 12101 et seq. (“ADA”),
alleging that Entergy discriminated against him in promotions,
wages, and working conditions because of race and disability.1
Boykin previously filed two similar federal lawsuits against
these defendants and others. See Boykin v. Entergy Operations,
Inc., No. 5:95-CV-145-BrS (S.D. Miss. Oct. 10, 1995) (unpublished)
(“Boykin I”), aff’d, No. 00-60046 (5th Cir. Aug. 21, 2000); Boykin
v. Entergy Operations, Inc., No. 3:97-CV-348-WS (S.D. Miss. Sept.
30, 1998) (unpublished) (“Boykin II”), aff’d, No. 98-60676 (5th
Cir. Apr. 16, 1999)(unpublished), cert. denied, 120 S. Ct. 408(1999). In Boykin II, the district court dismissed as res judicata
all claims that were or could have been brought before November 18,
1996, the date Boykin I was decided. Remaining claims were
dismissed on their merits.
In the present case Boykin alleged acts occurring from 1985 to
1997. The district court granted summary judgment and held that
claims arising prior to September 30, 1998, the date Boykin II was
decided, were res judicata because they could have been brought in
Boykin II. Boykin appeals, and both Boykin and Entergy have filed
motions for sanctions.
1
Boykin abandoned his ADA claim in the district court by
failing to argue it in his opposition to summary judgment. A
plaintiff cannot abandon an issue in his opposition to a motion
for summary judgment and then resurrect it on appeal. Hargrave
v. Fibreboard Corp., 710 F.2d 1154, 1164 (5th Cir. 1983).
2
“Failure to provide any legal or factual analysis of an issue
results in waiver.” American States Ins. Co. v. Bailey, 133 F.3d
363, 372 (5th Cir. 1998). Boykin does not “argue why or on what
grounds the district court’s finding [of res judicata] was legally
or factually incorrect.” Id. Even pro se litigants must brief
their issues. Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995).
Because Boykin offers no legal or factual analysis of the res
judicata issue, he abandons it. Moreover, because he neither
identifies any adverse action that occurred after the res judicata
cut-off date nor distinguishes current claims from those
adjudicated, he fails to identify any claim that is not res
judicata.
Summary judgment is reviewed de novo and is proper if “‘there
is no genuine issue as to any material fact and . . . the moving
party is entitled to judgment as a matter of law.’” Amburgey v.
Corhart Refractories Corp., 936 F.2d 805, 809 (5th Cir. 1991)
(quoting Fed. R. Civ. P. 56(c)). By failing to brief any
significant issue, Boykin fails to challenge the summary judgment
on factual or legal grounds. His appeal is devoid of arguable
merit and is dismissed as frivolous. 5th Cir. R. 42.2. See Lyons
v. Sheetz, 834 F.2d 493, 495-96 (5th Cir. 1987).
“If a court of appeals determines that an appeal is frivolous,
it may, after a separately filed motion . . . and reasonable
opportunity to respond, award just damages and single or double
costs to the appellee.” Fed. R. App. P. 38. Entergy’s separately
filed motion provided Boykin with adequate notice, and Boykin
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responded. Although sanctions are not lightly imposed, even pro se
litigants do not have “unrestrained license to pursue totally
frivolous appeals.” Clark v. Green, 814 F.2d 221, 223 (5th Cir.
1987).
Boykin has tried three times to litigate essentially the same
cause of action. We affirmed dismissal of his first two lawsuits.
The second affirmance was based on res judicata, so Boykin knew or
is charged with knowledge that further litigation was foreclosed.
He nevertheless filed the present suit, which also was dismissed as
res judicata, and then proceeded to file an appeal that is not just
frivolous but is clearly vexatious and, in light of prior warnings,
contumacious as well. Entergy’s motion for sanctions is thus well-
taken. We order Boykin to pay Entergy’s attorneys’ fees and double
costs, and remand this case for the district court to determine the
amount of the reasonable fees Entergy incurred in defending this
appeal and to assess such fees and costs to Boykin.
Further, we warn Boykin that additional frivolous pleadings,
suits, or appeals filed by him or on his behalf will invite further
sanctions. In this regard, he is strongly advised to review any
pending litigation to ensure that he is not raising claims already
judicially resolved or that are otherwise frivolous.
Boykin filed a motion urging us to impose sanctions against
Entergy for untimely filing its appellate brief. The motion is
denied because Entergy’s brief was filed timely. See 5th Cir. R.
31.3 (allowing 33 days from date on certificate of service); Fed.
R. App. P. 26(a)(3) (period does not end on weekend or holiday).
4
Boykin’s motion for sanctions is DENIED.
Entergy’s motion for attorney’s fees and double costs under
Rule 38 is GRANTED, and the case is REMANDED for the district court
to set the amount of attorney’s fees incurred on appeal.
Boykin’s appeal is DISMISSED. 5th Cir. R. 42.2.
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