Dudley v. Connors , 91 F. App'x 938 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 3, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40649
Summary Calendar
GENE E. DUDLEY,
Plaintiff-Appellant,
versus
N.L. CONNORS, Warden; UNKNOWN RICE, Caseworker;
MARIA ROSE, Counselor; KATHLEEN HAWKS, Director
of Bureau of Prisons, Washington, D.C.; PAUL
NICHOLAS; JOHN 2-5 DOES; R. ROUT, Mailroom
Personnel at El Reno Federal Correctional Institute;
UNKNOWN WILBURN, Officer, Mailroom Personnel;
RICHARD GOODSEAL, Mailroom Personnel; UNKNOWN
HENDERSON; Lieutenant, SHU Housing Unit Manager;
UNKNOWN HAMM, Officer; INSTITUTIONAL MANAGEMENT
SYSTEM OFFICER, El Reno Federal Correctional
Institute Management System Officer,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:00-CV-308
Before GARWOOD, EMILIO M. GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
Gene E. Dudley, federal prisoner # 10961-045, appeals the
*
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opinion should not be published and is not precedent except under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.
dismissal of his civil rights complaint. See Bivens v. Six Unknown
Named Agents, 403 U.S. 388 (1971). Dudley filed a purported notice
of appeal from the judgment of dismissal; however, that pleading
did not “clearly evince” an intent to appeal, as the primary relief
requested was reconsideration and Dudley sought to appeal only in
the alternative. See Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.
1987). The pleading therefore did not constitute a timely notice
of appeal from the judgment dismissing the complaint with
prejudice, and, consequently, we have jurisdiction only to review
the denial of his FED. R. CIV. P. 60(b) motion, from which he did
file a timely notice of appeal, but our review is only for an abuse
of discretion. See Lancaster v. Presley, 35 F.3d 229, 231 (5th
Cir. 1994).
Dudley’s contention that his proceedings were rendered unfair
because the district court failed to consider his objections prior
to adopting the recommendation of the magistrate judge is frivolous
given that the district court did ultimately review the objections
and deemed them meritless. Also frivolous is his contention that
we lack jurisdiction over this appeal because there was no final
judgment; the district court adjudicated all claims against all
defendants.
Dudley’s conclusional allegations that the defendants
fraudulently misrepresented whether his claims were exhausted are
an insufficient basis on which to grant Rule 60(b)(3) relief. See
2
Gov’t Fin. Servs. One Ltd. P’ship v. Peyton Place, Inc., 62 F.3d
767, 772 (5th Cir. 1995). Finally, with respect to Dudley’s
argument that his unexhausted claims were erroneously dismissed
with prejudice he has demonstrated no abuse of the district court’s
discretion in denying Rule 60(b) relief in that respect. See
Edwards v. City of Houston, 78 F.3d 983, 995 (5th Cir. 1996) (abuse
of discretion is standard of review of denial of Rule 60(b)
relief).
AFFIRMED.
3