Luther Cobb v. Timothy Simmons, et al

Filing 511081353

Case: 09-10737

Document: 00511081353

Page: 1

Date Filed: 04/15/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-10737 S u m m a r y Calendar April 15, 2010 Lyle W. Cayce Clerk

L U T H E R WAYNE COBB, also known as Luther Wayne Ware, P la in tiff - Appellant v. T I M O T H Y SIMMONS, Senior Warden; JOE NUNN, Senior Warden; M A R Y A N N LAMB, Librarian II; MELONIA SIMMON, Correctional Officer; G L E N H. WHITFIELD, Assistant Warden; VICKY BARROW, Assistant P r o g r a m Admin., D e fe n d a n t s - Appellees

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 2:09-CV-34

B e fo r e HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges. P E R CURIAM:* L u t h e r Wayne Cobb, Texas prisoner # 1294301, appeals from the district c o u r t 's dismissal of his civil rights complaint as frivolous and for failure to state a claim. Cobb does not contend that the district court erred by finding that the c la im s he raised in his 42 U.S.C. § 1983 complaint were without merit. Instead, h e principally asserts that the district court erred by dismissing his complaint
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

Case: 09-10737

Document: 00511081353 Page: 2 No. 09-10737

Date Filed: 04/15/2010

w it h o u t granting him the chance to amend his complaint with a supplemental m e m o r a n d u m of law. I n general, it is improper for a district court to dismiss a pro se complaint w ith o u t affording the plaintiff the opportunity to amend. Bazrowx v. Scott, 136 F .3 d 1053, 1054 (5th Cir. 1998); cf. FED. R. CIV. P. 15(a) (noting that plaintiff m a y amend his complaint once as a matter of course at any time before a r e s p o n s iv e pleading is served). However, any such error may be ameliorated if t h e plaintiff has pleaded his "best case." Bazrowx, 136 F.3d at 1054 & n.7 (citing J a c q u ez v. Procunier, 801 F.2d 789, 793 (5th Cir. 1986)). Cobb had ample o p p o r tu n ity to set forth the basis for his claims, including, inter alia, in his r e s p o n s e s to the district court's questionnaire and his objections to the m a g is tr a te judge's (MJ's) reports. Thus, as there is no indication that Cobb had n o t set forth his best case, any error by the district court in denying him the o p p o r tu n ity to amend his complaint before dismissing it was harmless. Id. T h e district court also did not erroneously deny Cobb's postjudgment m o t io n to file an amended complaint. "In cases where a party seeks to amend [h is ] complaint after entry of judgment, we have consistently upheld the denial o f leave to amend where the party seeking to amend has not clearly established t h a t he could not reasonably have raised the new matter prior to the trial court's m e r i t s ruling." Vielma v. Eureka Co., 218 F.3d 458, 468 (5th Cir. 2000) (citation a n d internal quotation marks omitted). Here, despite his prejudgment requests to file a legal memorandum, Cobb did not move before judgment to amend his c o m p la in t . Moreover, Cobb's motion to file an amended complaint and the a c c o m p a n y in g memorandum merely reiterate facts and arguments from his p r e ju d g m e n t pleadings. Thus, because Cobb's postjudgment motion to amend c o n t a in s matters that he raised ­ or reasonably could have raised ­ before the c o u r t 's order of dismissal, he has not shown that the district court abused its d is c r e tio n in denying his motion. See Rosenzweig v. Azurix Corp., 332 F.3d 854, 8 6 5 (5th Cir. 2003); Vielma, 218 F.3d at 468. 2

Case: 09-10737

Document: 00511081353 Page: 3 No. 09-10737

Date Filed: 04/15/2010

F in a lly , to the extent that Cobb argues that the district court erred by not fin d i n g that he raised adequate grounds in his Federal Rule of Civil Procedure 5 9 (e ) motion to justify the filing of a legal memorandum, his claim is unavailing. H is Rule 59(e) motion was not premised upon newly discovered evidence, and he d i d not demonstrate any manifest error of law or fact that called into question t h e correctness of the court's decision not to permit the requested amendment. S e e Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990). The district c o u r t 's order dismissing his Section 1983 complaint does not constitute new e v id e n c e enabling the filing of a legal memorandum. Cobb was aware before the o r d e r that his prior requests to file a legal memorandum were not granted, and h e has not otherwise shown that the court's decision not to allow the filing of a le g a l memorandum was erroneous. C o b b also argues that the district court erroneously concluded that he was r e q u ir e d to present in a habeas action his claim that he was denied access to the c o u r t s. However, the district court at no point suggested that Cobb's access-tot h e -c o u r t s claim was improper for a Section 1983 proceeding or otherwise o r d e r e d Cobb to bring that claim in a habeas action. Instead, the court was a d d r e s s in g Cobb including in his objections to the MJ's supplemental report a d e t a il e d analysis of the effectiveness of his trial counsel, the sufficiency of the p r o t e ct io n s he received under the Sixth Amendment, and the validity of evidence in t r o d u c e d at trial. Because these claims exclusively concern the fact of Cobb's c o n v ic tio n rather than the conditions of his confinement, they more properly w o u ld be brought in a habeas action. See Cook v. Tex. Dep't of Criminal Justice T r a n s it io n a l Planning Dep't, 37 F.3d 166, 168 (5th Cir. 1994). The district court t h e r e f o r e did not err in noting that, to the extent that Cobb sought to incorporate t h e s e claims in his objections to the MJ's supplemental report, the claims were p r o p e r for Cobb's pending habeas application. T h e district court's dismissal counts as a strike against Cobb for purposes o f 28 U.S.C. § 1915(a). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 3

Case: 09-10737

Document: 00511081353 Page: 4 No. 09-10737

Date Filed: 04/15/2010

1 9 9 6 ). Cobb is hereby cautioned that, if he accumulates three strikes, he may n o t proceed in forma pauperis in any civil action or appeal filed while he is in c a r c e ra t e d or detained in any facility unless he is under imminent danger of s e r io u s physical injury. See 28 U.S.C. § 1915(g). AFFIRMED; SANCTION WARNING ISSUED.

4