Bitara v. State of Texas

Filing 920060831

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 31, 2006 Charles R. Fulbruge III Clerk No. 05-20315 Summary Calendar MARIANITO T. BITARA, individually and on behalf of all persons similarly situated, Plaintiff-Appellant, versus STATE OF TEXAS, Defendant-Appellee. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 4:04-CV-3620 -------------------Before SMITH, WIENER, and OWEN, Circuit Judges. PER CURIAM:* Plaintiff-Appellant Marianito T. Bitara appeals from the

district court's denial of relief pursuant to FED. R. CIV. P. 60(b) following the district court's dismissal of his complaint for failure to state a claim. Bitara has also filed a motion to strike

the State's appellate brief or its motion for an extension of time to file that brief. Bitara's motion is denied.

We find no abuse of discretion in the district court's denial of Bitara's Rule 60(b) motion. See Matter of Ta Chi Navigation

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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(Panama) Corp. S.A., 728 F.2d 699, 703 (5th Cir. 1984).

First, the

State of Texas is immune from Bitara's suit under the Eleventh Amendment, see Cronen v. Texas Dep't of Human Servs., 977 F.2d 934, 937 (5th Cir. 1992); also, 42 U.S.C. § 2000d-7(a)(1) does not affect the State's Eleventh Amendment immunity in Bitara's case. Second, as Bitara does not indicate how an amendment to his complaint could have overcome the State's immunity from suit, the district court did not abuse its discretion by not allowing an amendment. See Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 Third, the district court was not required to

(5th Cir. 1981).

take judicial notice of Bitara's legal arguments, see FED. R. EVID. 201(a); neither was it required to issue findings of fact or conclusions of law. See FED. R. CIV. P. 52(a). Fourth, Bitara has

failed to show that the admission of the Assistant Attorney General pro hac vice in the district court rendered the State's motion to dismiss Bitara's complaint for failure to state a claim fraudulent or invalid. We do not consider Bitara's contention that the State's alleged failure to address some of his asserted issues on appeal constitutes a judicially binding admission entitling him to relief. As that contention is raised for the first time in Bitara's reply brief, we are not required to address it. Comal, 400 F.3d 284, 292 (5th Cir. 2005). Finally, Bitara accuses the district court of committing fraud on the court, argues that we 2 should institute disciplinary See Wallace v. County of

proceedings against the district court, and suggests that we are committing fraud as well. Baseless allegations against the

judiciary will not be tolerated. See Theriault v. Silber, 579 F.2d 302, 303 (5th Cir. 1978). Bitara is warned that future baseless

allegations of misconduct or future pursuit of frivolous litigation may invite the imposition of sanctions. APPEAL DISMISSED. DENIED. See 5TH CIR. R. 42.2. MOTION TO STRIKE

SANCTION WARNING IMPOSED.

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