Raymond Torres v. Alphonso James, et al

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UNPUBLISHED OPINION FILED. [10-40479 Affirmed ] Judge: WG , Judge: WED , Judge: PRO Mandate pull date is 01/11/2011 [10-40479]

Raymond Torres v. Alphonso James, et alDocument: 00511328449 Case: 10-40479

Page: 1 Date Filed: 12/21/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-40479 S u m m a r y Calendar December 21, 2010 Lyle W. Cayce Clerk

R A Y M O N D TORRES, P la in t if f -A p p e lla n t v. A L P H O N S O JAMES; DAVID A. TURRUBIATE; MICHELL THOMAS; N A T H A N I E L WADE; STACY MICHENS; ET. AL, D e fe n d a n t s -A p p e lle e s

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 3:07-CV-224

B e fo r e GARWOOD, DAVIS and OWEN, Circuit Judges. P E R CURIAM:* R a y m o n d Torres, Texas prisoner # 860248, appeals the district court's d is m is s a l of his 42 U.S.C. § 1983 complaint as frivolous. He also appeals the d is t r ic t court's denial of his Federal Rule of Civil Procedure 59 motion to alter o r amend the judgment. O n appeal, Torres primarily argues that the district court erred by d is m is s in g his complaint with prejudice and without giving him notice and an

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 10-40479 Document: 00511328449 Page: 2 Date Filed: 12/21/2010 No. 10-40479 o p p o r t u n it y to amend his complaint. However, Torres provided an explanation o f his claims and extensive supporting evidence in his initial complaint. He also w a s given the opportunity to further detail his claims through the use of a q u e s t io n n a ir e and an order for a more definite statement. Because it appears t h a t Torres was able to present his "best case," the district court did not r e v e r s ib ly err by dismissing his complaint with prejudice and without a specific o p p o r t u n it y to amend. See Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994); Jones v . Greninger, 188 F.3d 322, 327 (5th Cir. 1999). Regarding the district court's c o n c lu s io n s that his specific claims were frivolous, Torres's appellate brief m e r e ly repeats each claim and argues that it establishes a constitutional v io la t io n . He has not shown that the district court abused its discretion in d e n y in g his claims as frivolous. See Black v. Warren, 134 F.3d 732, 733-34 (5th C ir . 1998).1 A fte r filing a timely notice of appeal from the district court's dismissal of h is complaint, Torres filed a Rule 59(e) motion to alter or amend the judgment. Although Torres has addressed the denial of this motion in his appellate brief, h e failed to actually file a notice of appeal from its denial. See Fed. R. App. P . 4(a)(4)(B)(ii); see also Williams v. Chater, 87 F.3d 702, 704-06 (5th Cir. 1996); I n te r F ir s t Bank Dallas, N.A. v. F.D.I.C., 808 F.2d 1105, 1108 (5th Cir. 1987). As T o r r e s has not filed a notice of appeal regarding this motion, we lack jurisdiction t o consider it. See Bowles v. Russell, 551 U.S. 205, 214 (2007). A F F IR M E D .

The district court in its thorough and detailed 26 page opinion gave full and careful consideration to each of Torres's claims and allegations, and to the relevant authorities, including, among several others, Ashcroft v. Iqbal, 129 S.Ct. 1937, 1951-54 (2009); Sandin v. Conner, 115 S.Ct. 2293, 2297-2302 (1995); Black v. Warren, supra; Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995); and Murphy v. Collins, 26 F.3d 541 (5th Cir. 1994).

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