Omoike vs. LA State University (5th Cir. 1996)

Federal Circuits, 5th Cir. (December 16, 1996)

Docket number: 95-31147

Permanent Link: http://vlex.com/vid/omoike-vs-state-university-18396134
Id. vLex: VLEX-18396134

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U.S. Court of Appeals for the 5th Cir. - Glen Robertson and Cheryl Robertson, Individually and as Heirs At Law of Jonathan P. Robertson, Plaintiffs-Appellants, v. Plano City of Texas, Et Al., Defendants-Appellees., 70 F.3d 21 (5th Cir. 1995)

U.S. Court of Appeals for the 5th Cir. - 31 Fair Empl.Prac.Cas. 612, 31 Empl. Prac. Dec. P 33,490 Agnes E. Nilsen, Plaintiff-Appellant, v. the City of Moss Point, Mississippi, Defendant-Appellee., 701 F.2d 556 (5th Cir. 1983)

U.S. Court of Appeals for the 5th Cir. - Clinton C. Howard, Jr., and Michael Chapman and Kenneth Robinson, Plaintiffs-Appellants, v. John T. King, Secretary, Department of Corrections, and Ross Maggio, Jr., Warden, Louisiana State Penitentiary, Defendants-Appellees., 707 F.2d 215 (5th Cir. 1983)

U.S. Court of Appeals for the 5th Cir. - United States of America, Plaintiff-Appellee, v. Timothy Lynn Calverley, Defendant-Appellant., 37 F.3d 160 (5th Cir. 1994)

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Text:

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 95-31147 Conference Calendar ISSAC I. OMOIKE, Plaintiff-Appellant, versus LOUISIANA STATE UNIVERSITY, Defendant-Appellee. Appeal from the United States District Court for the Middle District of Louisiana USDC No. 94-CV-894 December 11, 1996 Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM: * Issac I. Omoike does not challenge the district courtÂ’s order granting the defendantÂ’s motion for summary judgment and dismissing his complaint based on the doctrine of res judicata.

Omoike merely challenges the district courtÂ’s rulings made in his earlier suit which made the same claims as those made in the instant complaint. - Because Omoike has not disputed the district courtÂ’s determinations that the instant suit is identical to OmoikeÂ’s complaint in civil action # 91-6530B-M1, that he sued the same defendant in both suits, and that the prior action was dismissed on the merits by a court of competent jurisdiction, the complaint was properly dismissed based on the doctrine of res judicata.

See Fed. R.

Civ. P. 56(c); Nilsen v. City of Moss Point, Miss. , 701 F.2d 556, 559 (5th Cir. 1983) (en banc). The rulings in the prior action became final when Omoike failed to file a timely notice of appeal from the dismissal of that action, and Omoike cannot contest such rulings in the present action.

Omoike argued for the first time in his notice of appeal that the district judge and magistrate judge are biased against him. Therefore, this issue is subject to plain error review.

See United States v. Calverley , 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc), cert. denied , 115 S. Ct. 1266 (1995). OmoikeÂ’s allegations of judicial bias involve questions of fact which, by their nature, are not obvious error. See Robertson v. Plano City of Texas , 70 F.3d 21, 23 (5th Cir. 1995). The bias issue is not subject to appellate review. Because Omoike has failed to raise an issue of arguable merit, the appeal is dismissed as frivolous. See Howard v. King , 707 F.2d 215, 219-20 (5th Cir. 1983); 5th Cir. Rule 42.2. APPEAL DISMISSED.

No. 95-31147 -