IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20080
Summary Calendar
EDMUND B. HEIMLICH,
Plaintiff-Appellant,
versus
JOHNNY HOLMES, Individually,
and as District Attorney for Harris
County; CHARLES ROSENTHAL,
Individually, and as Assistant District
Attorney for Harris County, Texas;
MILTON OJEMAN, HARRIS COUNTY, TEXAS,
c/o Harris County District Attorney;
the STATE OF TEXAS, c/o Secretary of
State; RICARDO MOLINA, Individually,
and as Assistant District Attorney
for Harris County, Texas,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CV-866
--------------------
October 17, 2001
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Edmund B. Heimlich is appealing the district court’s order
granting the defendants’ motion for summary judgment and
dismissing his civil rights complaint based on res judicata.
*
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this opinion should not be published and is not precedent except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.
No. 01-20080
-2-
The State of Texas argues that Heimlich failed to state in
his notice of appeal that he was appealing the district court’s
order granting the State’s motion to dismiss and, thus, this
court has no jurisdiction to review that order.
Heimlich’s notice of appeal indicated that he was appealing
from the order granting the defendants’ motion for summary
judgment, which was entered subsequent to the order granting the
State’s motion to dismiss. It did not reference the separate
order dismissing the State of Texas. Further, Heimlich makes no
other statements that indicate that he intends to appeal the
order granting the State’s motion. Thus, this court lacks
jurisdiction to address the district court’s dismissal of the
State of Texas from the proceeding. See Fed. R. App. P.
3(c)(1)(B); Ingraham v. United States, 808 F.2d 1075, 1080 (5th
Cir. 1987).
Heimlich argues that the district court abused its
discretion in allowing the defendants to raise a res judicata
offense in an amended answer. The district court did not abuse
its discretion in granting the defendants’ motion to amend their
answer to raise the defense of res judicata. Heimlich was
allowed to respond to the defense, and the interest of justice
was served by allowing the parties to assert that they had
previously successfully defended against the same claims. See
Simi Inv. Co. Inc. v. Harris County, Tex., 236 F.3d 240, 252 n.16
(5th Cir. 2000).
Heimlich further argues that the district court erred in
granting the defendants’ motion for summary judgment and
No. 01-20080
-3-
dismissing his civil rights complaints based on res judicata.
Heimlich argues that the judgment in his prior civil rights
action is void because the district court did not have
jurisdiction to address the immunity defenses of the defendants
in that case. He further argues that his instant complaint
involves a different cause of action than his prior complaint
because it alleges the new fact that his state criminal
conviction has been reversed by the state appellate court, an
event that occurred after the dismissal of his prior complaint.
Heimlich has not shown that the district court erred in
determining that his instant complaint is barred by the doctrine
of res judicata. “Res judicata is appropriate if: 1) the parties
to both actions are identical (or at least in privity); 2) the
judgment in the first action is rendered by a court of competent
jurisdiction; 3) the first action concluded with a final judgment
on the merits; and 4) the same claim or cause of action is
involved in both suits.” Ellis v. Amex Life Ins. Co., 211 F.3d
935, 936 (5th Cir. 2000).
Heimlich does not dispute that both his prior and instant
civil rights complaints alleged violations of his constitutional
rights in connection with his prosecution for theft by the Harris
County District Attorney’s Office. He has not demonstrated that
the mere reversal of his criminal conviction gave rise to a new
legal cause of action nor has he shown that the reversal had any
significant effect on the district court’s determination in his
prior suit that the defendants were immune from liability. See
Wilson v. Lynaugh, 878 F.2d 848, 851 (5th Cir. 1989).
No. 01-20080
-4-
Heimlich has not challenged on appeal the district court’s
determination that the claims against all of the defendants named
in the instant case, including those who were not named in his
prior complaint, are barred by res judicata. Thus, he has
abandoned any such claim on appeal. See Yohey v. Collins, 985
F.2d 222, 224-25 (5th Cir. 1993).
Heimlich’s remaining claims are new claims and arguments
that he failed to make in the district court. Arguments made for
the first time on appeal are subject to review for plain error.
See United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.
1994)(en banc).
Heimlich’s new claims or arguments are additional
challenges to the district court’s determination that Heimlich’s
claims against the defendants were resolved by his prior civil
rights litigation. Because Heimlich’s new arguments are all
frivolous, he has not shown that the district court plainly erred
in dismissing his complaint based on res judicata.
AFFIRMED.