Mann v. Smith, et al

* 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this opinion should not be published and is not precedent except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
October 21, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-60345
Conference Calendar
ELLIS MANN,
Plaintiff-Appellant,
versus
LEON SMITH; MAXINE SMITH; JOHN DOES,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:04-CV-469-GuRo
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Ellis Mann appeals the dismissal for lack of subject matter
jurisdiction of his 42 U.S.C. § 1983 lawsuit seeking to have
custody of his daughter restored to him. He argues that the
dismissal was erroneous because the district court had
jurisdiction under 42 U.S.C. § 1983 and under 28 U.S.C. § 1332 as
he has recently moved to California.
The district court lacked the authority to assume
jurisdiction over Mann’s attempt to modify the terms of a state-

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No. 04-60345
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court child custody order. See Rykers v. Alford, 832 F.2d 895,
900 (5th Cir. 1987); see also Chrissy F. by Medley v. Miss. Dept.
of Public Welfare, 995 F.2d 595, 599 (5th Cir. 1993). The appeal
is without arguable merit and is DISMISSED as frivolous. See 5TH
CIR. R. 42.2; Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). We caution Mann that the filing of frivolous appeals and
motions will invite the imposition of a sanction.
APPEAL DISMISSED; SANCTION WARNING ISSUED.

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