                                                       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.

                       --------------------
           Appeal from the United States District Court
             for the Southern District of Mississippi
                     USDC No. 3:03-CV-1001-BN
                       --------------------

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this opinion should not be published and is not precedent except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.
