Case: 11-30842 Document: 00511801018 Page: 1 Date Filed: 03/26/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 26, 2012
No. 11-30842
Summary Calendar Lyle W. Cayce
Clerk
CHUKUMA E. AZUBUKO,
Plaintiff-Appellant
v.
CATHERINE H. GALLAGHER CO-OPERATIVE HOUSING, C/O Hallkeen
Management Company; CITY OF BOSTON,
Defendants-Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:04-CV-838
Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
Chukwuma E. Azubuko seeks leave to proceed in forma pauperis (IFP) in
his appeal of the denial of his motion to alter or amend a judgment pursuant to
Federal Rule of Civil Procedure 59(e). See FED. R. CIV. P. 59(e) (setting 28-day
filing period); Tex. A&M Research Found. v. Magna Transp., Inc., 338 F.3d 394,
400 (5th Cir. 2003) (holding that post-judgment motions filed within the
then-applicable 10-day filing period for Rule 59(e) motions must be construed as
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 11-30842
filed pursuant to Rule 59(e)). Azubuko’s Rule 59(e) motion challenged the denial
of his motion under Federal Rule of Civil Procedure 60(b) for relief from
judgment. The Rule 60(b) motion, in turn, challenged a 2005 order in the Middle
District of Louisiana that transferred this pro se 42 U.S.C. § 1983 civil rights
lawsuit to the District of Massachusetts. The district court in Massachusetts
promptly dismissed the case with prejudice as frivolous. Azubuko v. Catherine
H. Gallagher Coop. Hous., No. 1:05-CV-10068 (D. Mass. Feb. 17, 2005)
(memorandum order).
Azubuko’s appeal of the district court’s denial of his Rule 59(e) motion can
bring up for review both the Rule 59(e) ruling and the underlying judgment—in
this case, the denial of Rule 60(b) relief. See Foman v. Davis, 371 U.S. 178,
179-81 (1962). However, the transfer order underlying the denial of the Rule
60(b) motion is not before us. See In re Ta Chi Navigation (Pan.) Corp. S.A., 728
F.2d 699, 703 (5th Cir. 1984) (holding that an appeal from the denial of a Rule
60(b) motion does not bring up the underlying judgment for review).
By moving to appeal IFP, Azubuko challenges the district court’s
certification that his appeal is not taken in good faith. Baugh v. Taylor, 117 F.3d
197, 202 (5th Cir. 1997). Our inquiry “is limited to whether the appeal involves
legal points arguable on their merits (and therefore not frivolous).” Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation
omitted). “The existence of any nonfrivolous issue on appeal is sufficient to
require that this Court grant the [IFP] motion.” Id.
We liberally construes pro se briefs, but “even pro se litigants must brief
arguments in order to preserve them.” Mapes v. Bishop, 541 F.3d 582, 584 (5th
Cir. 2008) (citing Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) and FED.
R. APP. P. 28(a)(9)). Azubuko has failed to identify any nonfrivolous issue with
respect to the denial of his Rule 60(b) and Rule 59(e) motions, and he has thus
“effectively abandoned” the only possible issues for appeal. Id.; see In re Ta Chi
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No. 11-30842
Navigation, 728 F.2d at 703. Accordingly, we deny the IFP motion and dismiss
the appeal as frivolous. See 5TH CIR. R. 42.2; Howard, 707 F.2d at 220.
Pro se litigants do not have “unrestrained license to pursue totally
frivolous appeals.” Clark v. Green, 814 F.2d 221, 223 (5th Cir. 1987). We
caution Azubuko that future frivolous, repetitive, or otherwise abusive filings
may result in the imposition of sanctions, including dismissal, monetary
sanctions, and restrictions on his ability to file pleadings in this court or any
court subject to this court’s jurisdiction.
IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.
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