Davis v. University Medical Center , 141 F. App'x 253 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 24, 2005
Charles R. Fulbruge III
Clerk
No. 04-60854
Summary Calendar
LOUIS DAVIS, JR.,
Plaintiff-Appellant,
versus
UNIVERSITY MEDICAL CENTER; SHIRLEY SCHLESSINGER,
also known as Unknown Schlessincer; UNKNOWN WILSON;
UNKNOWN FAIRBALL; UNKNOWN SCHAAN,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:03-CV-1001-BN
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Louis Davis, Jr., Mississippi prisoner # 16425, seeks to
appeal the dismissal of his 42 U.S.C. § 1983 action, alleging the
denial of adequate medical care. The district court dismissed
the suit after a Spears hearing for failure to state a cognizable
claim. More than 10 days after entry of the judgment of
dismissal, Davis filed a motion for “summary judgment,” which is
properly construed as a motion under FED. R. CIV. P. 60(b). See
*
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this opinion should not be published and is not precedent except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. 04-60854
-2-
Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665,
668-69 (5th Cir. 1986)(en banc). Davis filed a notice of appeal
less than 30 days after the denial of the Rule 60(b) motion, but
more than 30 days after the judgment dismissing the underlying
action. His notice of appeal, therefore, is effective only as to
the denial of the Rule 60(b) motion; the underlying judgment is
not before us. See FED. R. APP. P. 4(a)(1)(A), 4(a)(4)(A);
Edwards v. City of Houston, 78 F.3d 983, 995 (5th Cir. 1996)(en
banc).
Davis argues that the defendants acted in excess of their
authority by performing surgery without first consulting him,
thereby subjecting him to cruel and unusual punishment. He also
argues that he was denied his liberty interest under the Due
Process Clause in refusing unwanted medical treatment, that the
surgery performed on him was an assault and battery, and that the
district court failed to give him and opportunity to present
evidence on his claims. To the extent that Davis’s arguments
attack the underlying judgment, we do not consider them because
the underlying judgment is not before us. See Edwards, 78 F.3d
at 995. To the extent that Davis’s arguments implicate the
denial of Rule 60(b) relief, Davis fails to show that the
district court abused its discretion by denying his post-judgment
motion. See Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402
(5th Cir. 1981)(appellant from denial of Rule 60(b) motion must
show that denial was "so unwarranted as to constitute an abuse of
No. 04-60854
-3-
discretion"). Davis also moves for the appointment of counsel,
which is DENIED.
The district court’s judgment is AFFIRMED. MOTION DENIED.