Case: 10-40479 Document: 00511328449 Page: 1 Date Filed: 12/21/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 21, 2010
No. 10-40479
Summary Calendar Lyle W. Cayce
Clerk
RAYMOND TORRES,
Plaintiff-Appellant
v.
ALPHONSO JAMES; DAVID A. TURRUBIATE; MICHELL THOMAS;
NATHANIEL WADE; STACY MICHENS; ET. AL,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:07-CV-224
Before GARWOOD, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Raymond Torres, Texas prisoner # 860248, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 complaint as frivolous. He also appeals the
district court’s denial of his Federal Rule of Civil Procedure 59 motion to alter
or amend the judgment.
On appeal, Torres primarily argues that the district court erred by
dismissing 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-40479 Document: 00511328449 Page: 2 Date Filed: 12/21/2010
No. 10-40479
opportunity to amend his complaint. However, Torres provided an explanation
of his claims and extensive supporting evidence in his initial complaint. He also
was given the opportunity to further detail his claims through the use of a
questionnaire and an order for a more definite statement. Because it appears
that Torres was able to present his “best case,” the district court did not
reversibly err by dismissing his complaint with prejudice and without a specific
opportunity 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
conclusions that his specific claims were frivolous, Torres’s appellate brief
merely repeats each claim and argues that it establishes a constitutional
violation. He has not shown that the district court abused its discretion in
denying his claims as frivolous. See Black v. Warren, 134 F.3d 732, 733-34 (5th
Cir. 1998).1
After filing a timely notice of appeal from the district court’s dismissal of
his 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,
he 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);
InterFirst Bank Dallas, N.A. v. F.D.I.C., 808 F.2d 1105, 1108 (5th Cir. 1987). As
Torres has not filed a notice of appeal regarding this motion, we lack jurisdiction
to consider it. See Bowles v. Russell, 551 U.S. 205, 214 (2007).
AFFIRMED.
1
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).
2