IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-30832
Conference Calendar
LIONEL CUREAUX, SR.,
Plaintiff-Appellant,
versus
GINGER BERRIGAN, U.S. District Judge
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 97-CV-1705-E
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December 9, 1997
Before BARKSDALE, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Lionel Cureaux, Sr., federal prisoner # 23888-034,
proceeding pro se and in forma pauperis (IFP), brought this
action pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), against United States
District Judge Ginger Berrigan. Cureaux, who appeals the
dismissal of his complaint as frivolous pursuant to 28 U.S.C.
§ 1915(e)(2(B)(i), contends that Judge Berrigan denied him access
to the courts and violated his constitutional right to due
*
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that this opinion should not be published and is not precedent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.
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process by dismissing his 28 U.S.C. § 2255 motion because
Cureaux’s direct appeal of his conviction was pending. Cureaux
asserts that the district court erred in dismissing his complaint
as frivolous because Judge Berrigan is not immune from his claims
for attorney’s fees and injunctive relief.
The district court may dismiss an IFP complaint as frivolous
pursuant to § 1915(e)(2)(B)(i) if it lacks an arguable basis in
law or in fact. Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir.
1997). We review a dismissal as frivolous pursuant to § 1915(e)
for an abuse of discretion. Moore v. Mabus, 976 F.2d 268, 270
(5th Cir. 1992).
Cureaux does not challenge the district court’s
determination that Judge Berrigan is entitled to absolute
judicial immunity against his damages claims. See Krueger v.
Reimer, 66 F.3d 75, 76-77 (5th Cir. 1995) (Judges are absolutely
immune from damages for acts performed in the exercise of
judicial functions.). Accordingly, Cureaux has abandoned this
claim. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813
F.2d 744, 748 (5th Cir. 1987)(issues not asserted on appeal are
abandoned).
Cureaux’s contention that he is entitled to attorney’s fees
and injunctive relief because Judge Berrigan dismissed his § 2255
motion without prejudice while his direct criminal appeal was
pending lacks an arguable basis in law and is frivolous. Fassler
v. United States, 858 F.2d 1016, 1019 (5th Cir. 1988). The
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district court did not abuse its discretion by dismissing
Cureaux’s complaint as frivolous. Norton, 122 F.3d at 291.
Cureaux’s appeal is without arguable merit and is frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Because the appeal is frivolous, it is DISMISSED. See 5TH CIR.
R. 42.2. We caution Cureaux that any additional frivolous
appeals filed by him or on his behalf will invite the imposition
of sanctions. To avoid sanctions, Cureaux is further cautioned
to review any pending appeals to ensure that they do not raise
arguments that are frivolous.
APPEAL DISMISSED; SANCTION WARNING ISSUED.