                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS        November 21, 2003
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 02-21242
                         Summary Calendar



EDMUND B. HEIMLICH,

                Plaintiff-Appellant,

     versus

HARRIS COUNTY, TEXAS; JOHNNY B. HOLMES; WERNER VOIGT; TED POE;
JOHN BOONE; BALDWIN CHIN; STUART W. BROWN; JUDY BEDDINGFIELD;
ERNEST W. GODFREY, III; DENNIS RAY KUITHE; STATE OF TEXAS;
ANTONIO GARZA,

                Defendants-Appellees.




          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. H-96-CV-2556



Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Edmund B. Heimlich appeals the denial of his FED. R. CIV. P. 15

motion to amend his pleadings to reflect that the state appellate

court had reversed his criminal conviction.   Heimlich argues that

the district court did not have the discretion to deny his motion

to amend because the district court did not give a “substantial

     *
      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this opinion should not be published and is not precedent except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.
reason” for the denial.        He also contends that the denial of the

motion places “[p]rocedure ... over substance to conceal evidence

and obstruct justice.”

      “Post-judgment amendment to a complaint can only occur once

the judgment itself is vacated under FED. R. CIV. P. 59 or 60.”1 The

judgment against Heimlich was not vacated under either of these

rules.    In cases where a party seeks to amend a complaint after

entry of judgment, “we have consistently upheld the denial of leave

to   amend   where    the   party   seeking   to   amend   has   not   clearly

established that he could not reasonably have raised the new matter

prior to the trial court's merits ruling.”2           Heimlich has made no

such showing.        Consequently, Heimlich’s appeal of the district

court’s refusal to allow him to amend his pleadings five years

after the judgment is without arguable merit and is frivolous.            The

appeal is therefore DISMISSED.3 Heimlich’s outstanding motions are

DENIED.




      1
      See Vielma v. Eureka Co., 218 F.3d 458, 468 (5th Cir. 2000);
see also Whitaker v. City of Houston, 963 F.2d 831, 834-36 (5th
Cir. 1992).
      2
      Briddle v. Scott, 63 F.3d 364, 380 (5th Cir.1995); see also
6 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 1489 (2d ed.
1990 & Supp. 1999).
      3
       See 5TH CIR. R. 42.2.
