IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-40039
Summary Calendar
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WESLEY EUBANKS,
Plaintiff-Appellant,
versus
JAMES COLLINS,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 93-CV-589
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June 14, 1995
Before KING, JOLLY and DeMOSS, Circuit Judges.
PER CURIAM:*
Wesley Eubanks's motion to proceed in forma pauperis (IFP)
on appeal is DENIED as moot. The district court implicitly
granted Eubanks leave to proceed IFP when it dismissed Eubanks's
complaint as frivolous. Because Eubanks's appeal requires no
further briefing, the court will consider the merits of the
appeal. Clark v. Williams, 693 F.2d 381, 382 (5th Cir. 1982)
"This Court must examine the basis of its jurisdiction, on
its own motion, if necessary." Mosley v. Cozby, 813 F.2d 659,
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-40039
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660 (5th Cir. 1987). A notice of appeal in a civil case in which
an appeal is permitted by law as of right must be filed within
thirty days of entry of the judgment or order appealed from.
Fed. R. App. P. 4(a)(1).
Eubanks's motion for reconsideration, which alternatively
requested that it be treated as a notice of appeal if the motion
for reconsideration was denied, did not clearly evince an intent
to appeal. See Mosley, 813 F.2d at 660. Nor did the motion for
reconsideration, which was filed more than ten days after entry
of judgment, extend the time for Eubanks's filing his notice of
appeal from the judgment dismissing his complaint. Any
postjudgment motion that challenges the underlying judgment,
requests relief other than correction of a purely clerical error,
and is served more than ten days after judgment is entered, is
treated as a motion under Fed. R. Civ. P. 60(b). Harcon Barge
Co. v. D & G Boat Rentals, 784 F.2d 665, 667 (5th Cir.) (en
banc), cert. denied, 479 U.S. 930 (1986). Such motion "does not
affect the finality of the judgment or suspend its operation."
See Rule 60(b). Eubanks's motion was filed more than ten days
after entry of judgment.** Therefore, Eubanks's motion for
reconsideration was treated correctly by the district court as a
**
Generally, a motion "served" within ten days of the entry
of judgment extends the time for filing a notice of appeal. See
Fed. R. App. P. 59(e); Fed. R. App. P. 4(a)(4)(F). However,
because the complaint was dismissed prior to service on the
defendant, the date that the motion for reconsideration is filed
is the controlling date for purposes of characterizing the
motion. See Craig v. Lynaugh, 846 F.2d 11, 13 (5th Cir. 1988).
No. 95-40039
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Rule 60(b) motion for relief from the judgment which did not
extend the appellate filing period.
Eubanks's notice of appeal was not timely filed with respect
to the judgment dismissing his complaint entered on October 13,
1994. See Fed. R. App. P. 4(a)(1); 4(c). However, the January
7, 1995, notice of appeal was timely with respect to the district
court's order denying Eubanks's Rule 60(b) motion and, therefore,
this court has jurisdiction to review such order. See First
National Bank v. Summer House Joint Venture, 902 F.2d 1197, 1200
n.3 (5th Cir. 1990).
Our review is limited to whether the district court abused
its discretion in denying the Rule 60(b) motion. Carimi v. Royal
Caribbean Cruise Line, Inc., 959 F.2d 1344, 1345 (5th Cir. 1992).
"It is not enough that the granting of relief might have been
permissible, or even warranted--denial must have been so
unwarranted as to constitute an abuse of discretion." Seven
Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. Unit A Jan.
1981). Generally, the denial of a Rule 60(b) motion does not
bring up the underlying judgment for review. See Harrison v.
Byrd, 765 F.2d 501, 503 (5th Cir. 1985).
Eubanks argued in his motion for reconsideration that the
district court erred in dismissing his complaint as frivolous
because the defendant failed to apply the security guidelines
applicable to the racial integration of two-man cells established
in the class action of Lamar v. Scott, No. 72-H-1393 (S.D. Tex.).
Racial segregation in prisons is unconstitutional, except to
the extent necessary for prison security and discipline. Lee v.
No. 95-40039
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Washington, 390 U.S. 333, 333-34 (1968). This court has rejected
the argument that forced integration violates the Lamar decree
based on it previous determination that a policy of integration
by choice of a prisoner is unconstitutional. Id. at 6. See
Jones v. Diamond, 636 F.2d 1364, 1373 (5th Cir.) (en banc), cert.
dismissed, 453 U.S. 950 (1981), overruled on other grounds,
International Woodworkers of America v. Champion Int'l Corp., 790
F.2d 1174 (5th Cir. 1986) (en banc).
Eubanks also argued in his Rule 60(b) motion that the
district court failed to consider the Lamar guidelines requiring
prison officials to consider the security risks involved in
making integrated celling assignments. Prisoners do have the
right to reasonable protection from injury at the hands of other
inmates under the Eighth Amendment. Johnston v. Lucas, 786 F.2d
1254, 1259 (5th Cir. 1986). However to establish a claim for the
failure to protect from injury at the hands of another inmate,
the plaintiff must show deliberate indifference on the part of
the prison officials. Id. at 1260.
Eubanks did not argue in his Rule 60(b) motion that he was
threatened or that he had been the victim of racially-motivated
violence. He merely argued that he warned officials that he
would personally become violent if forced to live in an
integrated cell. Eubanks's has not argued the existence of "a
pervasive risk of harm" toward Eubanks or "failure to take
reasonable steps to prevent [such] known risk." Stokes v.
Delcambre, 710 F.2d 1120, 1125 (5th Cir. 1983). Therefore,
Eubanks has not argued in his motion that prison officials were
No. 95-40039
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deliberately indifferent to his safety in placing him in an
integrated cell.
Eubanks submitted affidavits on appeal in which he described
acts of violence by black inmates against other inmates. Because
these affidavits were not presented to the district court, this
court will not consider such evidence on appeal. See United
States v. Flores, 887 F.2d 543, 546 (5th Cir. 1989).
Eubanks's argument that the district court abused its
discretion in refusing to transfer his case to the Lamar court
was not raised in the Rule 60(b) motion and, thus, is not subject
to this court's review. Harrison, 765 F.2d at 503. Eubanks
argues for the first time on appeal that the prison officials
denied his repeated requests for notice of the Lamar guidelines
which are to be followed by the classification committee in
determining cell assignments. Eubanks also argues for the first
time on appeal that he has been denied fundamental due process
because he has not been advised of the prison guidelines and
rules under which he was disciplined for refusing to accept the
integrated cell assignment.
This court need not address issues not considered by the
district court. "[I]ssues raised for the first time on appeal
are not reviewable by this court unless they involve purely legal
questions and failure to consider them would result in manifest
injustice." Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.
1991). These issues involve factual questions that were not
addressed in the district court. Therefore, they are not subject
to review for the first time on appeal.
No. 95-40039
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The district court did not abuse its discretion in denying
Eubanks's Rule 60(b) motion.
AFFIRMED.