* 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that this opinion should not be published and is not precedent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.

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.

- - - - - - - - - -

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 97-CV-1705-E

- - - - - - - - - -

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
No. 97-30832

-2-

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
No. 97-30832

-3-

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.