Johnson v. United States

No. 99-60533
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60533
Conference Calendar
FREDDIE C. JOHNSON, SR.,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:98-CV-159-B-A
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February 16, 2000
Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Freddie C. Johnson, Sr., appeals from the dismissal of his
suit arising under the Federal Tort Claims Act. See 28 U.S.C.
§§ 2671 - 2680.
He does not challenge the basis of the court’s dismissal,
want of subject matter jurisdiction due to Johnson’s failure to
present his tort claim to the relevant federal agency. Instead
he challenges the U.S. Attorney’s certification by arguing that
the acts by the government attorney were not done within the
scope of her employment, and therefore, the suit was improperly
removed to federal court. See § 2679(b)(1), (d)(2). From our
*
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that this opinion should not be published and is not precedent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. 99-60533
-2-
independent review of the record and the applicable state law
governing the scope-of-employment determination, we conclude that
the alleged acts by the attorney were done within the scope of
her employment. Johnson fails to demonstrate error in the
Government’s certification. See Palmer v. Flaggman, 93 F.3d 196,
199 (5th Cir. 1996); Marter v. Scott, 514 So. 2d 1240, 1242
(Miss. 1987).
Johnson also argues that the district court erred in
quashing his subpoenas. Because Johnson failed to appeal
properly to the district court from the magistrate judge’s order
quashing the subpoenas for Jeffrey Nesvet and for Kathleen
Henderson, his argument directed toward those subpoenas is not
properly before this court. See Colburn v. Bunge Towing, Inc.,
883 F.2d 372, 379 (5th Cir. 1989). As for the district court’s
affirmance of the magistrate judge’s order quashing the subpoenas
issued for Cynthia Brown and for Jaylynn Fortney, we find no
abuse of discretion in the district court’s ruling. See Tiberi
v. Cigna Ins. Co., 40 F.3d 110, 112 (5th Cir. 1994).
This appeal is without arguable merit and is thus frivolous.
It is therefore DISMISSED. See 5TH CIR. R. 42.2. Johnson is
warned that any additional frivolous appeals filed by him or on
his behalf will invite sanctions by this court.
DISMISSED AS FRIVOLOUS. SANCTION WARNING ISSUED.