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Fenelon v. Byrd, 99-31114 (2000)

Court: Court of Appeals for the Fifth Circuit Number: 99-31114 Visitors: 23
Filed: Oct. 19, 2000
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 99-31114 Conference Calendar BARBARA COLEMAN FENELON, Plaintiff-Appellant, LAW & GRACE INC., Appellant, versus CAROL BYRD; CHERYL BORNE; REBECCA BROWN, JESSIE LEPREE; KEETON MARKS; KENNETH TAYLOR; BARRY ANDERSON; UNIDENTIFIED PARTIES, Defendants-Appellees. - Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 99-CV-1052-E - October 18, 2000 Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judge
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT




                            No. 99-31114
                        Conference Calendar



BARBARA COLEMAN FENELON,

                                    Plaintiff-Appellant,

LAW & GRACE INC.,

                                    Appellant,

versus

CAROL BYRD; CHERYL BORNE; REBECCA BROWN, JESSIE LEPREE;
KEETON MARKS; KENNETH TAYLOR; BARRY ANDERSON;
UNIDENTIFIED PARTIES,

                                    Defendants-Appellees.


                        --------------------
           Appeal from the United States District Court
               for the Eastern District of Louisiana
                       USDC No. 99-CV-1052-E
                        --------------------
                           October 18, 2000
Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Barbara Ann Coleman Fenelon, proceeding pro se, appeals the

district court’s dismissal of her civil rights action.     Fenelon

argues that the district court erred in dismissing her 42 U.S.C.

§ 1985(3) claim of a conspiracy to violate her civil rights.

Fenelon’s claim is based on allegations that the defendants have


     *
        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that this opinion should not be published and is not precedent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. 99-31114
                                 - 2 -

conspired against her on the basis of racial and religious

discrimination.    There is no claim under § 1985(3) for religious

discrimination.    Word of Faith World Outreach Center Church, Inc.

v. Sawyer, 
90 F.3d 118
, 124 (5th Cir. 1996).    Fenelon has never

alleged that the defendants discriminate against black people as

a class.    Fenelon alleged only that the discrimination was

against her personally, for the religious views she expressed in

her book.

     Furthermore, § 1985(3) requires an allegation that the

object of the conspiracy was to deprive the plaintiff of a right

guaranteed to United States citizens under the law.     Word of

Faith, 90 F.3d at 124
.    Although Fenelon uses the code words

“equal protection” and “equal rights”, she does not identify of

which specific right the defendants allegedly conspired to

deprive her.    There is no constitutionally protected right to

have one's book sold at a Baptist bookstore, nor is there any

constitutionally protected right to membership in a particular

church or religious group.

     The district court did not err in dismissing Fenelon’s

§ 1985(3) conspiracy claim for failure to state a claim.    Fenelon

does not challenge the district court’s dismissal of her other

claims, and so they are considered abandoned.     See Yohey v.

Collins, 
985 F.2d 222
, 225 (5th Cir. 1993).

     Fenelon argues that the district court abused its discretion

in denying her motion to amend her complaint filed after final

judgment in conjunction with her Fed. R. Civ. P. 59(e) motion to

vacate the judgment.     She contends that she could not have raised
                          No. 99-31114
                              - 3 -

her RICO and antitrust claims earlier because she was denied the

opportunity to conduct discovery.

     The district court did not abuse its discretion in denying

Fenelon’s motions to vacate and amend after final judgment had

been entered, to amend her complaint to add new claims.     See

Rourke v. Thompson, 
11 F.3d 47
, 51 (5th Cir. 1993).     As the

district court correctly determined, the alleged new evidence did

not add anything to her claims as already pleaded and did not

form the basis of any newly discovered claims that could not have

been pleaded earlier.

     Fenelon’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.

     The appeal of Law & Grace, Inc., Fenelon’s business, is

DISMISSED because it is not represented by counsel.     See In re

K.M.A., Inc., 
652 F.2d 398
(5th Cir. 1981).

Source:  CourtListener

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