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Shabazz v. White ( 2008 )


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  •           IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT  United States Court of Appeals
Fifth Circuit
FILED
November 25, 2008
No. 07-20840
Summary Calendar                Charles R. Fulbruge III
Clerk
AHMED S SHABAZZ, also known as Clarence M Hines
Plaintiff-Appellant
v.
BILL WHITE, City of Houston; HAROLD HURTT, Chief of Police; TOMMY
THOMAS, Sheriff of Harris County
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CV-3509
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Ahmed S. Shabazz, also known as Clarence M. Hines, has filed a motion
for leave to proceed in forma pauperis (IFP) on appeal from the district court’s
judgment dismissing his civil rights complaint and granting a defendant’s
summary-judgment motion. By moving for leave to proceed IFP, Shabazz is
challenging the district court’s certification that his appeal was not taken in good
faith. See Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997).
*
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should not be published and is not precedent except under the limited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.
No. 07-20840
Shabazz contends in a cursory manner that the district court erred by
refusing to grant a default judgment against all defendants. Certified mail from
Shabazz did not constitute proper service on the defendants under federal or
Texas service rules. See Delta Steamships Lines, Inc. v. Albano,
    768 F.2d 728
    ,
730 (5th Cir. 1985). A default judgment would have been unwarranted on this
basis. See Harper Macleod Solicitors v. Keaty & Keaty.
    260 F.3d 389
    , 393 (5th
Cir. 2001). Moreover, Sheriff Tommy Thomas responded to the complaint and
obtained a summary judgment, so a default judgment was unavailable against
him. See FED. R. CIV. P 55(a). Even had service been proper, Shabazz was not
entitled to default judgments as a matter of right on his unsupported claims.
See Lewis v. Lynn,
    236 F.3d 766
    , 767 (5th Cir. 2001).
Shabazz asserts that summary judgment was improper and that the
district court should have imposed sanctions on Sheriff Thomas’s attorney under
FED. R. CIV. P 11. Shabazz waived any appeal of these issues by failing to
provide any substantive argument concerning them in his brief. See Brinkmann
v. Dallas County Deputy Sheriff Abner,
    813 F.2d 744
    , 748 (5th Cir. 1987). In any
event, he fails to identify any basis for sanctions, and his “conclusory allegations”
do not defeat summary judgment. Little v. Liquid Air Corp.,
    37 F.3d 1069
    ,
1075(5th Cir. 1994)(en banc). Moreover, Shabazz failed to state a cause of action
based on anything other than vicarious liability for which relief is unavailable
under 42 U.S.C. § 1983. See Kohler v. Englade,
    470 F.3d 1104
    , 1114-15 (5th Cir.
2006).
Shabazz has failed to identify any nonfrivolous ground for appeal. His
motion to proceed IFP is DENIED, and his appeal is DISMISSED as frivolous.
See 5TH CIR. R. 42.2; Howard v. King,
    707 F.2d 215
    , 220 (5th Cir. 1983).
2