Flores v. Lowe

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40415
Summary Calendar
ERBEY FLORES,
Plaintiff-Appellant,
versus
NELL LOWE, District Clerk, Polk County, Texas, Et Al.,
Defendants,
NELL LOWE, District Clerk, Polk County, Texas,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
(9:96-CV-215)
January 14, 2000
Before POLITZ, WIENER and BARKSDALE, Circuit Judges.
PER CURIAM:*
Erbey Flores, a Texas prisoner, appeals the bench trial dismissal of his 42
U.S.C. § 1983 action against Nell Lowe, clerk of the state court in Polk County,
Texas, and others. Flores contends that the district court erred by abusing its
discretion in: (1) declining to defer its ruling on defendant Wilma Robinson’s
summary judgment motion;1 (2) declining to continue the trial; (3) holding Flores
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1
Prior to trial on the claims against Lowe, the trial court dismissed t he claims against
Robinson, a Texas Department of Criminal Justice nurse.
to the same standard as an attorney during the trial; (4) failing to address the claims
that Lowe confiscated his state petition; (5) failing to allow Flores to call three
witnesses; (6) setting the case on Track 2 under the Civil Justice Expense and
Delay Reduction Plan for the Eastern District of Texas, thus violating his equal
protection rights; and (7) denying his post-trial Rule 60(b) motion. 2
Our review of the record reflects no abuse of discretion in the court’s
proceeding to consider and grant Robinson’s summary judgment motion. The
affidavit Flores proposed to submit in opposition thereto would not have added
relevant evidence.3
Flores advances no legitimate reason why the trial should have been
continued and the court’s declining to do so was not an abuse of discretion.4 Nor
does Flores cite to any instance at trial when he was held to the standard of an
attorney. The court neither prevented a question nor declined to consider any
argument because of its phrasing.
As to the challenge to the court’s ruling on several proposed witnesses, we
likewise find no abuse of discretion. The testimony Flores wished to elicit would
have been repetitious and cumulative given the facts to which the parties stipulated
at the beginning of the trial.5
2
Fed. R. Civ. P. 60(b).
3
See Fed. R. Civ. P. 56(f); Krim v. BancTexas Group, Inc., 989 F.2d 1435 (5th Cir. 1993).
4
Dorsey v. Scott Wetzel Services, Inc., 84 F.3d 170 (5th Cir. 1996).
5
Harvey v. Andrist, 754 F.2d 569 (5th Cir. 1985).
2
The contention that the court failed to address the claims that Lowe
confiscated his state petition does not pass muster. The court found that Lowe’s
actions as clerk complied with Texas law in all respects. Necessarily included in
this ruling was a rejection of the alleged confiscation claim.
Flores has not shown any prejudice as a consequence of his action being
placed on Track 2 of the Eastern District’s litigation management plan. The
suggestion that his equal protection rights were impaired is totally without merit.
Finally, Flores’ contention that the trial court erred in denying his Rule 60(b)
motion is not properly before the court. There has been no timely notice of appeal
of the denial of this motion, which was filed after Flores appealed the judgment
dismissing his § 1983 claims. This court therefore lacks jurisdiction to review the
ruling on the Rule 60(b) motion. An appeal on the merits does not include an
appeal of any subsequent Rule 60(b) ruling. A separate notice of appeal is
required.6 AFFIRMED.
6
Williams v. Chater, 87 F.3d 702 (5th Cir. 1996).
3