IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50483
Conference Calendar
FREDERICK COLLINS FERMIN,
and on behalf of the Estate of Petra V. Fermin,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-97-CV-1159
- - - - - - - - - -
April 19, 1999
Before JONES, SMITH, and DUHÉ, Circuit Judges.
PER CURIAM:*
Frederick Collins Fermin appeals the district court’s denial
of his post-judgment motions to reopen this case to allow him to
amend his complaint to add new claims. Fermin argues that the
district court abused its discretion for failing to make a
decision on his motion to amend his complaint as authorized by
Fed. R. Civ. P. 15(a). He also argues that the district court
abused its authority by changing his Fed. R. Civ. P. Rule 60(b)
motion to a Rule 60(a) motion.
*
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that this opinion should not be published and is not precedent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. 98-50483
-2-
Fermin’s only options were to move for relief from judgment
or to appeal. Whitaker v. City of Houston, 963 F.2d 831, 834
(5th Cir. 1992). A party desiring to amend after judgment has
been entered is obliged first to obtain relief from judgment.
Briddle v. Scott, 63 F.3d 364, 379-81 (5th Cir. 1995). Fermin
appealed first. Once he appealed, the district court no longer
had jurisdiction to grant Rule 60(b) relief without leave of the
Court of Appeals. Winchester v. U.S. Atty. for Southern Dist.
Texas, 68 F.3d 947, 949 (5th Cir. 1995). Because Fermin did not
seek substantive relief from judgment, his motion was not
calculated to reopen the judgment to allow for amendment of the
complaint. Briddle, 63 F.3d at 379-81.
Although Fermin cited to Rule 60(b), Fermin did not state
upon which grounds he sought relief from judgment, and his motion
to amend his complaint did not seek to challenge the judgment
substantively. He sought only to correct the district court’s
erroneous citation to a statute. The district court had the
authority to and did not abuse its discretion in construing his
motion as seeking only a clerical correction to the citation of
the statute pursuant to Rule 60(a). Britt v. Whitmire, 956 F.2d
509, 512-13 (5th Cir. 1992).
The district court did not abuse its discretion in denying
Fermin’s motions to reopen this case, after final judgment had
been entered and while his appeal was pending, to amend his
complaint to add new claims. See Rourke v. Thompson, 11 F.3d 47,
51 (5th Cir. 1993)(applying abuse of discretion standard).
No. 98-50483
-3-
We have reviewed the record and the district court's orders
and find no issue of arguable merit. Accordingly, we dismiss the
appeal as frivolous. Howard v. King, 707 F.2d 215, 219-20 (5th
Cir. 1983); 5TH CIR. R. 42.2.
This is not the first frivolous appeal brought by Fermin.
We sanctioned Fermin for bringing a frivolous appeal in Fermin v.
National Home Life Assurance Company, No. 93-8645 (5th Cir. Jan.
14, 1994) (unpublished). The district court dismissed his claims
as res judicata, and this court found that Fermin’s arguments
that his claims were not barred by res judicata were frivolous.
Once again, after this court dismissed his first appeal in this
case as frivolous in Fermin v. United States of America, No. 98-
50142 (5th Cir. May 7, 1998) (unpublished), Fermin is seeking a
second bite at the apple. Therefore, IT IS ORDERED that Fermin
is sanctioned** $105, thus doubling his cost of bringing this
appeal. IT IS ALSO ORDERED that Fermin remit payment to the
Clerk of this Court. The Clerk of this Court and the clerks of
all federal district courts within this Circuit are directed to
refuse to file any pro se civil complaint or appeal by Fermin
unless Fermin submits proof of satisfaction of this sanction.
APPEAL DISMISSED; SANCTION IMPOSED.
**
The appellee has not moved for sanctions. We have the
authority to impose sanctions sua sponte. See Coghlan v.
Starkey, 852 F.2d 806, 808 (5th Cir. 1988).