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Gage v. United States, 98-31389 (1999)

Court: Court of Appeals for the Fifth Circuit Number: 98-31389 Visitors: 26
Filed: Aug. 27, 1999
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-31389 Conference Calendar RUBY EDNA GAGE, individually and on behalf of Jenny Gage, on behalf of Joshua Gage; WILLIAM GAGE, individually and on behalf of Jenny Gage, on behalf of Joshua Gage, Plaintiffs-Appellants, versus UNITED STATES OF AMERICA, Defendant-Appellee. - Appeal from the United States District Court for the Western District of Louisiana USDC No. 97-CV-1765 - August 24, 1999 Before KING, Chief Judge, and DAVIS and SM
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                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                              No. 98-31389
                          Conference Calendar



RUBY EDNA GAGE, individually and on behalf of Jenny Gage,
on behalf of Joshua Gage; WILLIAM GAGE, individually and on
behalf of Jenny Gage, on behalf of Joshua Gage,

                                              Plaintiffs-Appellants,

versus

UNITED STATES OF AMERICA,

                                              Defendant-Appellee.

                          --------------------
             Appeal from the United States District Court
                 for the Western District of Louisiana
                           USDC No. 97-CV-1765
                          --------------------

                            August 24, 1999

Before KING, Chief Judge, and DAVIS and SMITH, Circuit Judges.

PER CURIAM:*

     The plaintiffs** have appealed, pro se, the summary judgment

dismissal of a Federal Tort Claims Act suit alleging medical and

dental malpractice by United States Air Force health care

providers.     Mrs. Gage argues in her primary brief that a retained

attorney drafted the initial complaint ineffectively; that she

     *
        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that this opinion should not be published and is not precedent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.
     **
       We assume, without deciding, that the pro se brief signed
by Mrs. Edna Gage was also effective as to her husband and minor
children. See 5th Cir. R. 28.6; see also FED. R. APP. P. 3(c)(2).
                           No. 98-31389
                                -2-

was not allowed to talk to the district judge to explain the

facts of the case; and that she believes that she and her family

have been treated unfairly.

     Allegations of negligence or malpractice by counsel are not

a basis for appellate relief in a civil action.   Sanchez v. U.S.

Postal Serv., 
785 F.2d 1236
, 1237 (5th Cir. 1986).     The district

judge was not required to discuss the case with Mrs. Gage

personally.   Mrs. Gage’s belief that she has been treated

unfairly fails to establish error by the district court.

     In her reply brief, Mrs. Gage argues for the first time that

the district court failed to consider an amended complaint.

This court does not consider arguments which a party does not

include in his or her primary brief.   Campbell v. Keystone Aerial

Surveys, Inc., 
138 F.3d 996
, 1005 n. 12 (5th Cir. 1998).     We

note, nevertheless, that the record shows that the district court

addressed the substantive allegations raised in the amended

complaint.

     Because the appeal does not involve an issue of arguable

legal merit, it is DISMISSED AS FRIVOLOUS.   Howard v. King, 
707 F.2d 215
, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.   We caution

the Gages that any additional appeals filed by them or on their

behalf will invite the imposition of sanctions.   To avoid

sanctions, the Gages should review any pending appeals to ensure

that they do not raise arguments that are frivolous.

     APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.

Source:  CourtListener

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