IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-60258 (Summary Calendar)

WILLIAM BOYKIN, Etc., ET AL.,

Plaintiffs,

WILLIAM BOYKIN, Individually and on behalf of all others similarly situated,

Plaintiff-Appellant,

versus

ENTERGY OPERATIONS, INC., ET AL.,

Defendants,

ENTERGY OPERATIONS, INC; DON HINTZ; CHARLES R. HUTCHINSON; MIKE BAKARICH,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi (5:98-CV-29-BN) -------------------- October 6, 2000

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant William Boykin, pro se, appeals a summary

judgment dismissing discrimination claims against his employer,

Entergy Operations, Inc., and three individuals (collectively

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. “Entergy”). Boykin sued under 42 U.S.C. § 2000e et seq. (“Title

VII”),

, and

et seq. (“ADA”),

alleging that Entergy discriminated against him in promotions,

wages, and working conditions because of race and disability.1

Boykin previously filed two similar federal lawsuits against

these defendants and others. See Boykin v. Entergy Operations,

Inc., No. 5:95-CV-145-BrS (S.D. Miss. Oct. 10, 1995) (unpublished)

(“Boykin I”), aff’d, No. 00-60046 (5th Cir. Aug. 21, 2000); Boykin

v. Entergy Operations, Inc., No. 3:97-CV-348-WS (S.D. Miss. Sept.

30, 1998) (unpublished) (“Boykin II”), aff’d, No. 98-60676 (5th

Cir. Apr. 16, 1999)(unpublished), cert. denied,

(1999). In Boykin II, the district court dismissed as res judicata

all claims that were or could have been brought before November 18,

1996, the date Boykin I was decided. Remaining claims were

dismissed on their merits.

In the present case Boykin alleged acts occurring from 1985 to

1997. The district court granted summary judgment and held that

claims arising prior to September 30, 1998, the date Boykin II was

decided, were res judicata because they could have been brought in

Boykin II. Boykin appeals, and both Boykin and Entergy have filed

motions for sanctions.

1 Boykin abandoned his ADA claim in the district court by failing to argue it in his opposition to summary judgment. A plaintiff cannot abandon an issue in his opposition to a motion for summary judgment and then resurrect it on appeal. Hargrave v. Fibreboard Corp.,

(5th Cir. 1983).

2 “Failure to provide any legal or factual analysis of an issue

results in waiver.” American States Ins. Co. v. Bailey,

(5th Cir. 1998). Boykin does not “argue why or on what

grounds the district court’s finding [of res judicata] was legally

or factually incorrect.”

Even pro se litigants must brief

their issues. Grant v. Cuellar,

(5th Cir. 1995).

Because Boykin offers no legal or factual analysis of the res

judicata issue, he abandons it. Moreover, because he neither

identifies any adverse action that occurred after the res judicata

cut-off date nor distinguishes current claims from those

adjudicated, he fails to identify any claim that is not res

judicata.

Summary judgment is reviewed de novo and is proper if “‘there

is no genuine issue as to any material fact and . . . the moving

party is entitled to judgment as a matter of law.’” Amburgey v.

Corhart Refractories Corp.,

(5th Cir. 1991)

(quoting Fed. R. Civ. P. 56(c)). By failing to brief any

significant issue, Boykin fails to challenge the summary judgment

on factual or legal grounds. His appeal is devoid of arguable

merit and is dismissed as frivolous. 5th Cir. R. 42.2. See Lyons

v. Sheetz,

(5th Cir. 1987).

“If a court of appeals determines that an appeal is frivolous,

it may, after a separately filed motion . . . and reasonable

opportunity to respond, award just damages and single or double

costs to the appellee.” Fed. R. App. P. 38. Entergy’s separately

filed motion provided Boykin with adequate notice, and Boykin

3 responded. Although sanctions are not lightly imposed, even pro se

litigants do not have “unrestrained license to pursue totally

frivolous appeals.” Clark v. Green,

(5th Cir.

1987).

Boykin has tried three times to litigate essentially the same

cause of action. We affirmed dismissal of his first two lawsuits.

The second affirmance was based on res judicata, so Boykin knew or

is charged with knowledge that further litigation was foreclosed.

He nevertheless filed the present suit, which also was dismissed as

res judicata, and then proceeded to file an appeal that is not just

frivolous but is clearly vexatious and, in light of prior warnings,

contumacious as well. Entergy’s motion for sanctions is thus well-

taken. We order Boykin to pay Entergy’s attorneys’ fees and double

costs, and remand this case for the district court to determine the

amount of the reasonable fees Entergy incurred in defending this

appeal and to assess such fees and costs to Boykin.

Further, we warn Boykin that additional frivolous pleadings,

suits, or appeals filed by him or on his behalf will invite further

sanctions. In this regard, he is strongly advised to review any

pending litigation to ensure that he is not raising claims already

judicially resolved or that are otherwise frivolous.

Boykin filed a motion urging us to impose sanctions against

Entergy for untimely filing its appellate brief. The motion is

denied because Entergy’s brief was filed timely. See 5th Cir. R.

31.3 (allowing 33 days from date on certificate of service); Fed.

R. App. P. 26(a)(3) (period does not end on weekend or holiday).

4 Boykin’s motion for sanctions is DENIED.

Entergy’s motion for attorney’s fees and double costs under

Rule 38 is GRANTED, and the case is REMANDED for the district court

to set the amount of attorney’s fees incurred on appeal.

Boykin’s appeal is DISMISSED. 5th Cir. R. 42.2.

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