Gage v. United States ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-31389
Conference Calendar
RUBY EDNA GAGE, individually and on behalf of Jenny Gage,
on behalf of Joshua Gage; WILLIAM GAGE, individually and on
behalf of Jenny Gage, on behalf of Joshua Gage,
Plaintiffs-Appellants,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 97-CV-1765
--------------------
August 24, 1999
Before KING, Chief Judge, and DAVIS and SMITH, Circuit Judges.
PER CURIAM:*
The plaintiffs** have appealed, pro se, the summary judgment
dismissal of a Federal Tort Claims Act suit alleging medical and
dental malpractice by United States Air Force health care
providers. Mrs. Gage argues in her primary brief that a retained
attorney drafted the initial complaint ineffectively; that she
*
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that this opinion should not be published and is not precedent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.
**
We assume, without deciding, that the pro se brief signed
by Mrs. Edna Gage was also effective as to her husband and minor
children. See 5th Cir. R. 28.6; see also FED. R. APP. P. 3(c)(2).
No. 98-31389
-2-
was not allowed to talk to the district judge to explain the
facts of the case; and that she believes that she and her family
have been treated unfairly.
Allegations of negligence or malpractice by counsel are not
a basis for appellate relief in a civil action. Sanchez v. U.S.
Postal Serv., 785 F.2d 1236, 1237 (5th Cir. 1986). The district
judge was not required to discuss the case with Mrs. Gage
personally. Mrs. Gage’s belief that she has been treated
unfairly fails to establish error by the district court.
In her reply brief, Mrs. Gage argues for the first time that
the district court failed to consider an amended complaint.
This court does not consider arguments which a party does not
include in his or her primary brief. Campbell v. Keystone Aerial
Surveys, Inc., 138 F.3d 996, 1005 n. 12 (5th Cir. 1998). We
note, nevertheless, that the record shows that the district court
addressed the substantive allegations raised in the amended
complaint.
Because the appeal does not involve an issue of arguable
legal merit, it is DISMISSED AS FRIVOLOUS. Howard v. King, 707
F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. We caution
the Gages that any additional appeals filed by them or on their
behalf will invite the imposition of sanctions. To avoid
sanctions, the Gages should review any pending appeals to ensure
that they do not raise arguments that are frivolous.
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.