Sims, et al v. Drug Enforcement

No. 99-60506
-1-
* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60506
Summary Calendar
ROGER W. SIMS; JACQUELINE JAMES,
Plaintiffs-Appellants,
versus
DRUG ENFORCEMENT ADMINISTRATION,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:93-CV-170-S-A
--------------------
July 5, 2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Roger W. Sims and Jacqueline James, who are both federal
prisoners (# 09462-042 and # 09460-042, respectively) appeal the
district court’s dismissal of their pro se, in forma pauperis
(“IFP”) civil complaint as frivolous, pursuant to 28 U.S.C.
§ 1915(e)(2), on the basis of res judicata.
Under federal law, an action is barred by the doctrine of
res judicata if (1) the parties are identical or in privity in
both the instant action and a prior action; (2) the prior
judgment was rendered by a court of competent jurisdiction;

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No. 99-60506
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(3) the prior judgment was final on the merits; and (4) the cases
involve the same cause of action. Nagle v. Lee, 807 F.2d 435,
439 (5th Cir. 1987). Normally, when an appellant fails to
address a potential error in the district court’s analysis, it is
the same as if the appellant had not appealed that aspect of the
judgment. See Brinkmann v. Dallas County Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987). The plaintiffs challenge only one
aspect of the district court’s res judicata ruling; they argue
that one of the two prior judgments held to be res judicata–-the
district court’s dismissal as frivolous of their prior “Motion
for Return of Property”–-was not “on the merits” because this
court had dismissed their appeal of such matter for lack of
jurisdiction. Nonetheless, the district court’s dismissal of
such earlier IFP action as frivolous was res judicata with
respect to the same issues raised in their current IFP action.
See Marts v. Hines, 117 F.3d 1504, 1505-06 (5th Cir. 1997). The
district court did not abuse its discretion in dismissing the
plaintiffs’ action as frivolous on res judicata grounds.
See Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999).
The plaintiffs have largely abandoned their substantive
challenges to the seizures of their property by the DEA. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). They do
summarily contend (1) that the DEA provided inadequate notice to
Sims with respect to jewelry, in which Sims allegedly had
ownership interest, seized from James’ residence and subsequently
forfeited and (2) that the DEA improperly served notice of
forfeiture on James’ brother, who allegedly was mentally

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No. 99-60506
-3-
incompetent. Neither of these claims was pursued in district
court except in the most conclusional fashion, and at this time
the plaintiffs fail to cite to the record on appeal with respect
to these claims. Accordingly, even if it is assumed arguendo
that the prior judgments against Sims and James were not
res judicata as to these claims, they are nevertheless without
merit.
The plaintiffs have not shown that they were prejudiced by
the district court’s denial of their motion to conduct discovery
after the DEA filed its motion to dismiss or, in the alternative,
for summary judgment. See Marshall v. Norwood, 741 F.2d 761, 764
(5th Cir. 1984). No abuse of discretion is apparent. King v.
Dogan, 31 F.3d 344, 346 (5th Cir. 1994).
The district court’s judgment is AFFIRMED.

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