Robert Groden v. Jackie Diane Allen, et al, No. 09-10610 (5th Cir. 2009)
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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-10610 Summary Calendar November 11, 2009 Charles R. Fulbruge III Clerk ROBERT J GRODEN, Plaintiff-Appellee v. D BRADLEY KIZZIA, Appellee JACKIE DIANE ALLEN, Defendant-Appellee RICHARD B TOBIAS Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 3:03-CV-1685 Before KING, STEWART and HAYNES, Circuit Judges. PER CURIAM:* * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-10610 Richard B. Tobias, a sanctioned litigant, moves for leave to continue his appeal and to proceed in forma pauperis (IFP) in his appeal from the district court s denial of his motion for contempt and relief from final judgment. The district court denied Tobias leave to proceed IFP on appeal, certifying that the appeal is not taken in good faith. By moving for leave to proceed IFP, Tobias is challenging that certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into Tobias s good faith 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 omitted). Because Tobias does not address the reasons for the district court s certification decision or the basis of the district court s denial of his motion, it is the same as if he had not appealed the judgment. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987); Baugh, 117 F.3d at 202. He has not demonstrated that he will raise a nonfrivolous issue on appeal. See Howard, 707 F.2d at 219-20. Accordingly, his motion to continue his appeal and to proceed IFP is DENIED. See Baugh, 117 F.3d at 202 n.24. Because his appeal is frivolous, see Howard, 707 F.2d at 219-20, it is DISMISSED. See 5 TH C IR. R. 42.2. 2
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