Shirley v. Michigan State

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
February 17, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-30759
Conference Calendar
PAMELA SHIRLEY,
Plaintiff-Appellant,
versus
MICHIGAN STATE,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 03-CV-1544-T
--------------------
Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Pamela Shirley, a Louisiana resident and a non-prisoner
proceeding pro se, has filed a motion to proceed in forma
pauperis (IFP) on appeal challenging the district court’s
certification that her appeal was not taken in good faith.
See Baugh v. Taylor, 117 F.3d 197, 199-202 (5th Cir. 1997).
The district court dismissed her complaint and denied permission
to proceed IFP for lack of jurisdiction.

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No. 03-30759
-2-
Shirley has failed to brief the issue of jurisdiction.
Therefore, she effectively has waived the only issue relevant to
her entitlement to IFP status on appeal. See Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1993).
Even if Shirley had briefed the jurisdictional issue, we
conclude that an appeal would be frivolous. Federal courts
have a long-standing policy of abstaining from the exercise of
diversity jurisdiction in cases involving intrafamily relations,
including child custody actions, known as the domestic relations
exception. See Congleton v. Holy Cross Child Placement Agency,
Inc., 919 F.2d 1077, 1078 (5th Cir. 1990). The district court
did not err in construing Shirley’s complaint as essentially
concerning the custody of her children.
The district court’s certification that Shirley’s appeal is
not taken in good faith is upheld, Shirley’s motion for IFP is
DENIED, and this appeal is DISMISSED AS FRIVOLOUS. See Baugh,
117 F.3d at 202 and n.24. Shirley’s motion for appointment of
counsel also is DENIED. See Ulmer v. Chancellor, 691 F.2d 209,
212 (5th Cir. 1982). Shirley is WARNED that future frivolous
filings will be met with sanctions. To avoid sanctions, she
should review any pending appeals to ensure that they do not
raise arguments that are frivolous.
IFP DENIED; APPOINTMENT OF COUNSEL DENIED; APPEAL DISMISSED;
SANCTION WARNING ISSUED.

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