Carter v. Glasgow ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-20420
Summary Calendar
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MIKE CARTER,
Plaintiff-Appellant,
versus
RANDY B. GLASGOW; LARRY R. SHIMEK,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
(H-98-CV-1830)
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July 5, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
Mike Carter (Texas prisoner #655235) appeals, pro se, his 42
U.S.C. § 1983 action being dismissed pursuant to FED. R. CIV. P.
12(b)(6) for failure to state a claim upon which relief may be
granted. Carter v. Glasgow, No. H-98-1830 (S.D. Tex. 17 A.K. Marsh. 1999).
Carter’s action, initially filed in Texas state court, was removed
to federal district court.
Carter contends that: the district court dismissed his
complaint “without notification of its intent”; when his complaint
was dismissed, he was trying to obtain legal representation; and his
complaint was dismissed before he had the opportunity to move for
*
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this opinion should not be published and is not precedent except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.
appointment of counsel and for Rule 11 sanctions against defendants,
and to file objections to the motion to dismiss.
The district court did not provide Carter an opportunity to
amend his complaint prior to ruling on the Rule 12(b)(6) motion.
The circumstances of the case, however, indicate that Carter had
pleaded his best case. See Morin v. Caire, 77 F.3d 116, 121 (5th
Cir. 1996). Prior to removal, Carter twice amended his complaint
in Texas state court. The second amendment was in response to a
sustained special exception that Carter had failed to state any
legal cause of action against defendants. Because Carter had a fair
opportunity to plead his best case in his amended pleadings, remand
for yet another opportunity to amend is unnecessary. See Morrison
v. City of Baton Rouge, 761 F.2d 242, 244-46 (5th Cir. 1985).
Furthermore, the motion to dismiss was filed in June 1998;
Carter did not respond; and the district court did not grant the
motion until March 1999, nine months after filing. Given that Rule
6 of the Local Rules for the Southern District of Texas discusses
the procedures for opposing motions and provides the time frames for
the disposition of opposed and unopposed motions, Carter’s
contention that the district court dismissed his action without
notification of its intent to do so is unavailing. See Martin v.
Harrison County Jail, 975 F.2d 192, 193 (5th Cir. 1992).
Carter also contends that the district court erred when it
adopted facts from defendants’ motion contrary to allegations in his
complaint. He fails, however, to identify any specific examples.
Although he mentions some purported factual discrepancies, he refers
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to exhibits attached to his appellate brief, rather than to his
complaint, to prove that the district court failed to adopt his
version of the facts. Because a district court is limited to the
complaint when considering a Rule 12(b)(6) motion for failure to
state a claim, see Jackson v. City of Beaumont Police Dep’t, 958
F.2d 616, 618 (5th Cir. 1992), Carter has not shown that the
district court failed to accept his factual allegations. (In fact,
to the extent that the district court mentioned any disputed factual
allegations, it did so only as background information in discussing
the events leading up to the filing of the instant action. The
district court did not rely on any disputed allegations in
determining that Carter failed to state a claim upon which relief
could be granted.)
Finally, Carter challenges the district court’s determination
that he failed to allege the violation of a clearly established
constitutional right. He maintains that a § 1983 complaint states
such a violation if it alleges that state officials intentionally
concealed information crucial to a person’s ability to obtain
redress through the courts. Carter, however, did not allege that
defendants intentionally concealed information. Rather, he
maintained that the failure to provide information was the result
of defendants’ failure to comply with their duties under the Texas
Private Investigators and Private Security Agencies Act. Carter’s
allegations established, at most, that defendants were negligent;
this does not state the requisite intentional act.
AFFIRMED
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