Bitara v. State of Texas , 197 F. App'x 329 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 31, 2006
Charles R. Fulbruge III
Clerk
No. 05-20315
Summary Calendar
MARIANITO T. BITARA, individually and on behalf of all
persons similarly situated,
Plaintiff-Appellant,
versus
STATE OF TEXAS,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CV-3620
--------------------
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Marianito T. Bitara appeals from the
district court’s denial of relief pursuant to FED. R. CIV. P. 60(b)
following the district court’s dismissal of his complaint for
failure to state a claim. Bitara has also filed a motion to strike
the State’s appellate brief or its motion for an extension of time
to file that brief. Bitara’s motion is denied.
We find no abuse of discretion in the district court’s denial
of Bitara’s Rule 60(b) motion. See Matter of Ta Chi Navigation
*
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this opinion should not be published and is not precedent except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.
(Panama) Corp. S.A., 728 F.2d 699, 703 (5th Cir. 1984). First, the
State of Texas is immune from Bitara’s suit under the Eleventh
Amendment, see Cronen v. Texas Dep’t of Human Servs., 977 F.2d 934,
937 (5th Cir. 1992); also, 42 U.S.C. § 2000d-7(a)(1) does not
affect the State’s Eleventh Amendment immunity in Bitara’s case.
Second, as Bitara does not indicate how an amendment to his
complaint could have overcome the State’s immunity from suit, the
district court did not abuse its discretion by not allowing an
amendment. See Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597
(5th Cir. 1981). Third, the district court was not required to
take judicial notice of Bitara’s legal arguments, see FED. R. EVID.
201(a); neither was it required to issue findings of fact or
conclusions of law. See FED. R. CIV. P. 52(a). Fourth, Bitara has
failed to show that the admission of the Assistant Attorney General
pro hac vice in the district court rendered the State’s motion to
dismiss Bitara’s complaint for failure to state a claim fraudulent
or invalid.
We do not consider Bitara’s contention that the State’s
alleged failure to address some of his asserted issues on appeal
constitutes a judicially binding admission entitling him to relief.
As that contention is raised for the first time in Bitara’s reply
brief, we are not required to address it. See Wallace v. County of
Comal, 400 F.3d 284, 292 (5th Cir. 2005).
Finally, Bitara accuses the district court of committing fraud
on the court, argues that we should institute disciplinary
2
proceedings against the district court, and suggests that we are
committing fraud as well. Baseless allegations against the
judiciary will not be tolerated. See Theriault v. Silber, 579 F.2d
302, 303 (5th Cir. 1978). Bitara is warned that future baseless
allegations of misconduct or future pursuit of frivolous litigation
may invite the imposition of sanctions.
APPEAL DISMISSED. See 5TH CIR. R. 42.2. MOTION TO STRIKE
DENIED. SANCTION WARNING IMPOSED.
3