IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 98-50360
Summary Calendar
__________________
MICHAEL IDROGO, Individually
and as Lieutenant Commander
Idrogo,
Plaintiff-Appellant,
versus
DAVID J. GARCIA, District Clerk,
Individually and as District Clerk
of Bexar County, Texas, et al.
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-97-CV-1029
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November 27, 1998
Before EMILIO M. GARZA, DEMOSS and BENAVIDES, Circuit Judges.
PER CURIAM:*
IT IS ORDERED that Michael Idrogo's motion for leave to
proceed in forma pauperis (IFP) is DENIED, because his appeal
lacks arguable merit and is therefore frivolous. Howard v. King,
707 F.2d 215, 219-20 (5th Cir. 1983). In ruling on the motion,
this court has examined Idrogo's motion and brief in the light
most favorable to him and has reviewed the record for any basis
to support granting him relief on appeal. Because we have
*
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that this opinion should not be published and is not precedent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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concluded on this review that the appeal is frivolous, IT IS
FURTHER ORDERED that the appeal is DISMISSED. See 5TH CIR. R.
42.2.
To be granted leave to appeal IFP, Idrogo would have to
demonstrate that he is impecunious and that he will present a
nonfrivolous issue on appeal. Carson v. Polley, 689 F.2d 562,
586 (5th Cir. 1982). An action is frivolous under 28 U.S.C.
§ 1915 "if it lacks an arguable basis in law or fact." Eason v.
Thaler, 14 F.3d 8, 9 (5th Cir. 1994).
In his second amended complaint, Idrogo alleged claims
against his former wife, Wendolyn Bohn (Bohn); David J. Garcia,
Clerk of the District Courts of Bexar County, Texas; Texas state
District Judges Andy Mireles, Carol Haberman, Martha B. Tanner,
and Richard Garcia; and the unnamed persons who comprise Child
Support URESA Unit 212 in San Antonio, of the Office of the
Attorney General of Texas. Idrogo alleged claims under 42 U.S.C.
§§ 1981 and 1983 and other authorities in this complaint, which
the court permitted him to file in lieu of a more definite
statement.
The federal district court informed the parties that Clerk
Garcia’s answer would be treated as a motion for summary judgment
filed on behalf of all of the defendants. All of the defendants
except Bohn then filed affidavits, and Idrogo filed his own
affidavit in opposition to the motion. The district court
granted summary judgment to all of the defendants, on grounds
No. 98-50360
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that Idrogo’s affidavit failed to state specific facts which show
the existence of a genuine dispute, and failed to relate facts to
the applicable law.
Summary judgment is proper if the record “show[s] that there
is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Fed. R.
Civ. P. 56(c). This court “may affirm a district court’s ruling
on summary judgment based on any legally sufficient ground, even
one not relied upon by the district court.” Jones v. Sheehan,
Young & Culp, 82 F.3d 1334, 1337 (5th Cir. 1996).
Idrogo’s principal claims are (1) that the appellees
discriminated against him because he is Hispanic; (2) that he is
entitled to have the divorce decree and child-support orders set
aside; and (3) that he is entitled to have Bohn prosecuted for
the crimes which she allegedly has committed. The third
contention clearly lacks merit. Oliver v. Collins, 914 F.2d 56,
60 (5th Cir. 1990).
All of the defendants (except Bohn) refuted Idrogo’s
conclusional allegations of racial discrimination in their
summary-judgment affidavits. Thus, he is not entitled to relief
from the affiants on authority of 42 U.S.C. § 1981.
Idrogo complains of acts or omissions of the defendant
judges which allegedly occurred in the exercise of their judicial
functions. These defendants have absolute immunity from suit and
from liability for damages relative to such claims. See Stump v.
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Sparkman, 435 U.S. 349, 356-57 (1978); Hale v. Harney, 786 F.2d
688, 690-91 (5th Cir. 1986). Idrogo’s claim that Clerk Garcia
violated his rights by supplying court records to the defendant
judges is also frivolous.
Idrogo contends that he is entitled to have the divorce
decree and child-support orders set aside. He asserts, inter
alia, that the divorce violates his constitutional rights to
remain married to Bohn and to beget and raise children, in
accordance with his religious beliefs. Idrogo made these and
other claims in Idrogo v. Mireles [and Bohn], No. 94-50506 (5th
Cir. Jan. 25, 1995) (unpublished), an appeal which this court
dismissed as frivolous.
Bohn did not file an affidavit or submit any other evidence
relative to summary judgment. However, “[i]n ruling on a motion
to proceed IFP on appeal, we have dismissed an appeal as
frivolous because it involved a duplicative action arising from
the same series of events and alleging many of the same facts as
an earlier suit.” Bailey v. Johnson, 846 F.2d 1019, 1021 (5th
Cir. 1988). “[R]epetitious litigation of virtually identical
causes of action is subject to dismissal under [former] 25 U.S.C.
§ 1915(d) as malicious.” Id. (citation and quotation marks
omitted). Accordingly, Idrogo is not entitled to any appellate
relief relative to his claims against Bohn.
The persons comprising Unit 212 were entitled to summary
judgment because, as shown by their uncontradicted affidavit, the
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Unit was established pursuant to Texas state law to enforce
child-support orders, and Idrogo has not alleged facts which
would indicate that the Unit has violated any of his rights in so
doing.
Idrogo has abandoned his claim that he was entitled to
default judgments against all defendants except Bohn, and his
claim that he is entitled to relief under the Soldiers’ and
Sailors’ Civil Relief Act of 1940, by failing to brief them. See
Al-Ra’id v. Ingle, 69 F.3d 28, 33 (5th Cir. 1995).
We caution Idrogo that any additional frivolous appeals
filed by him will invite the imposition of sanctions. To avoid
sanctions, Idrogo is further cautioned to review any pending
appeals to ensure that they do not raise arguments that are
frivolous. See Brinkmann v. Johnston, 793 F.2d 111, 113 (5th
Cir. 1986).
IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.