     Case: 14-31351           Document: 00513252060       Page: 1    Date Filed: 10/29/2015




              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                        No. 14-31351                                FILED
                                      Summary Calendar                       October 29, 2015
                                                                               Lyle W. Cayce
                                                                                    Clerk
FRANK L. MCCALL, JR.,

                                                    Plaintiff-Appellant

v.

DONALD W. WASHINGTON, United States Attorney; CITY OF
LAFAYETTE,

                                                    Defendants-Appellees


                        Appeal from the United States District Court
                           for the Western District of Louisiana
                                  USDC No. 6:07-CV-240


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
          Frank L. McCall, Jr., Louisiana prisoner # 130746, appeals the order of
the district court denying him authorization to file a motion to reopen the
instant Bivens 1 action, which motion McCall based on newly discovered
evidence.         The district court found that McCall’s motion raised the same



         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.

          1   Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971).
    Case: 14-31351     Document: 00513252060      Page: 2    Date Filed: 10/29/2015


                                  No. 14-31351

frivolous argument concerning his criminal defense attorney that he had raised
in his Bivens complaint and in numerous other cases, and it therefore enforced
its prior sanctions order requiring him to obtain judicial pre-approval for all
pro se filings.
      McCall’s opening brief has not assigned error to or briefed the propriety
of the district court’s decision to enforce its prior sanctions order. As such, that
issue is waived. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); see
also Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987). To the extent that McCall addresses the merits of his newly-
discovered-evidence claim and alleges in a conclusional fashion that he is in
imminent danger of physical injury, he does so for the first time in his reply
brief, and issues raised for the first time in a reply brief are also waived. See
Warren v. Chesapeake Exploration, L.L.C., 759 F.3d 413, 420 (5th Cir. 2014).
McCall’s appeal is without arguable merit and is therefore dismissed as
frivolous. See 5TH CIR. R. 42.2; Williams v. Phillips Petroleum Co., 23 F.3d 930,
941 (5th Cir. 1994).
      McCall has already been sanctioned pursuant to 28 U.S.C. § 1915(g) on
account of his frivolous filings, and, therefore, he may not bring a civil action
or appeal proceeding in forma pauperis while incarcerated unless he is under
imminent danger of serious physical injury. McCall is cautioned that future
frivolous appeals or repetitive filings will result in the imposition of sanctions,
including dismissal, monetary sanctions, and restrictions on his ability to file
pleadings in this court or any court subject to this court’s jurisdiction.
      APPEAL DISMISSED; SANCTION WARNING ISSUED.




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