Dargane v. Rolling Stone

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 94-41084
Conference Calendar
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LESTER DARGANE,
Plaintiff-Appellant,
versus
ROLLING STONE,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:93-CV-415
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June 28, 1995
Before JONES, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
IT IS ORDERED that Lester J. Dargane's motion for leave to
proceed in forma pauperis is DENIED, because his appeal lacks
arguable merit and is therefore frivolous. See Howard v. King,
707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is
frivolous, IT IS FURTHER ORDERED that the appeal is DISMISSED.
See 5th Cir. R. 42.2.
Dargane contends that he is entitled to removal of the
*
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that this opinion should not be published.
No. 94-41084
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sanction on grounds that he did not submit the frivolous § 1983
complaint to the district court for filing. He states that he
sent it to Rolling Stone, in an effort to obtain a refund. He
asserts that Rolling Stone sent it to the court without his
consent.
Dargane did not present this contention in his Rule 60(b)
motion. This court need not address issues not considered by the
district court. "[I]ssues raised for the first time on appeal
are not reviewable by this court unless they involve purely legal
questions and failure to consider them would result in manifest
injustice." Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.
1991). This is an issue of fact, so the court will not address
it.
This court's review of a ruling on a Rule 60(b) motion is
limited to a determination whether the ruling constituted an
abuse of discretion. Frazier v. Board of Trustees, 765 F.2d
1278, 1292 (5th Cir. 1985), cert. denied, 476 U.S. 1142 (1986).
The court has been "insistent that Rule 60(b) is not a substitute
for the ordinary method of redressing judicial error - appeal."
Alvestad v. Monsanto Co., 671 F.2d 908, 912 (5th Cir.), cert.
denied, 459 U.S. 1070 (1982). Dargane failed to appeal the
judgment which contained the sanction order, and he has not
presented an adequate argument that the district court abused its
discretion.
Dargane is admonished that further prosecution of frivolous
appeals in this court will result in the imposition of sanctions
pursuant to Fed. R. App. P. 38. "A litigant's pro se status does
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not preclude imposition of sanctions." Lyons v. Sheetz, 834 F.2d
493, 496 (5th Cir. 1987).
IFP DENIED; APPEAL DISMISSED.