                                                   United States Court of Appeals
                                                            Fifth Circuit
                                                          F I L E D
                    In the                               September 27, 2005
 United States Court of Appeals                      Charles R. Fulbruge III
           for the Fifth Circuit                             Clerk
                _______________

                  m 04-50231
                _______________



            ANGELINA M. TORRES,
            ALSO KNOWN AS ANN DOE,


                                  Plaintiff-Appellant,

                    VERSUS

              COUNTY OF WEBB;
              STATE OF TEXAS,
     AND UNKNOWN AGENTS IN THEIR OFFICIAL
AND PERSONAL CAPACITIES, JOINTLY AND SEPARATELY;
               CITY OF LAREDO,
  AND OTHER UNKNOWN AGENTS IN THEIR OFFICIAL
AND PERSONAL CAPACITIES, JOINTLY AND SEPARATELY;
   CATHOLIC DIOCESE OF CORPUS CHRISTI,
            JOINTLY AND SEPARATELY;
             DIOCESE OF LAREDO,
            JOINTLY AND SEPARATELY;
       CABLE NEWS NETWORK (CNN),
   AND ITS AFFILIATES, JOINTLY AND SEPARATELY;
  COLUMBIA BROADCASTING SYSTEM (CBS),
   AND ITS AFFILIATES, JOINTLY AND SEPARATELY;
 NATIONAL BROADCASTING COMPANY (NBC),
   AND ITS AFFILIATES, JOINTLY AND SEPARATELY;
    TEXAS DEPARTMENT OF AGRICULTURE;
      CENTRAL INTELLIGENCE AGENCY,
     AND UNKNOWN AGENTS, IN THEIR OFFICIAL
AND PERSONAL CAPACITIES, JOINTLY AND SEPARATELY,


                                  Defendants-Appellees.
                                      _________________________

                              Appeal from the United States District Court
                                   for the Western District of Texas
                                         m A-02-CV-550-SS
                                ______________________________




Before GARWOOD, SMITH, AND DEMOSS,                         macing at the county courthouse and elsewhere
  Circuit Judges.                                          that interfered with her constitutional rights of
                                                           travel, free expression of religion, and free
JERRY E. SMITH, Circuit Judge:*                            speech; and transmission of altered national and
                                                           local news programming directed solely at her
   Angelina Torres, a licensed attorney pro-               that slandered her;2 and tarring and feathering by
ceeding pro se, appeals orders (1) dismissing              unknown individuals inside city hall. Torres also
her numerous claims of federal constitutional              contends that defendants subjected her to high
and civil rights violations (pursuant to 42                frequency noises “created by sound waves aimed
U.S.C. §§ 1981, 1982, 1983 and 1985, and vi-               at the Plaintiff’s ears and inflicting upon her ears
olations of the First, Fourth, Fifth, Eighth,              sounds of conversations of persons unknown to
Thirteen, and Fourteen Amendments) and fed-                the plaintiff which are insulting and offensive and
eral and state tort law violations; (2) denying            intended to cause and create extreme emotional
her motion for reconsideration, motion to va-              distress, with the use of audio speaker devices
cate judgment, and motion for a new trial; and             believed to be of a metallic nature whose origi-
(3) denying her a temporary restraining order,             nation and location cannot be determined.”
preliminary injunction, permanent injunction,
and motion for protective order. We affirm.                   Torres further alleges that the diocese “en-
                                                           gaged in concerted anti-abortion activities that
                       I.                                  interfered with the Appellant’s right to practice
   Torres sued the State of Texas, Webb                    her Catholic faith and ultimately caused her to
County, the City of Laredo, the Catholic Dio-              suffer emotional distress by subjecting her to an
cese of Laredo, the CIA, CBS, CNN, NBC,1                   assault by a Catholic priest after Mass, which in
and their unknown agents, alleging, inter alia,            turn caused her to be intimidated so as to forego
invisible and unidentified voices in her home              attending church for fear of further attacks.”
that invaded her privacy; electric shocks and              She also avers employment discrimination and
                                                           interference with employment rights through
   *
     Pursuant to 5TH CIR. R. 47.5, the court has de-
                                                              2
termined that this opinion should not be published               One such alleged comment directed solely at
and is not precedent except under the limited cir-         Torres said “Black, Black” and used other words that
cumstances set forth in 5TH CIR. R. 47.5.4.                had racial overtones. Another comment, again
                                                           transmitted solely to her, was allegedly uttered by
   1
    The suit against NBC was dismissed for inad-           Dan Rather and included a disgusting remark related
equate service of process.                                 to the female anatomy.

                                                       2
slanderous activities akin to “blacklisting.” Ac-       served).3
cording to Torres, these acts were part of a
vast conspiracy between and among the defen-                The district court was also correct in dismiss-
dants to target her for ridicule and harassment         ing all claims other than the Title VII claims
because she had counseled clients on their              against the state as barred by the Eleventh
right to abortion.                                      Amendment.4 Moreover, summary judgment on
                                                        all claims against the diocese was proper because
    Because Torres did not delineate the role           Torres did not timely file a motion in opposition
that each defendant played in these activities,         to summary judgment, in disregard of not only
the district court, based on her various other          the local rules but also an express court order
filings, construed the amended complaint to             noting that if Torres failed to respond to the
assert the following causes of action against           diocese’s motion within the time mandated by
each defendant: (1) employment discrimina-              the local rules, the motion would be granted as
tion, (2) battery, (3) intentional infliction of        unopposed.
emotional distress, (4) slander, (5) invasion of
privacy, (6) violations of §§ 1981 and 1982,                                     B.
and (7) violations of § 1983 for allegedly vio-            With respect to the federal and state tort
lating, and conspiracy under § 1985(3) to vio-          claims for assault and battery, intentional inflic-
late, her First, Fourth, Fifth, Thirteen and            tion of emotional distress, slander, and invasion
Fourteen Amendment rights. Torres’s claims              of privacy, the district court was correct in dis-
were dismissed under Federal Rule of Civil              missing the claims against the city and county as
Procedure 12(b)(1) and (6) and on summary               barred by the doctrine of state law sovereign
judgment.

                       II.
                       A.                                  3
   Dismissals under rule 12(b) are reviewed de                At least one court has held that service on the
novo, Fernandez-Montes v. Allied Pilots                 agency may be sufficient where the identity of the
                                                        agents is unknown. See Ecclesiastical Order of the
Ass'n, 987 F.2d 278, 284 (5th Cir.1993); Low-
                                                        Ism of Am, Inc., v. Chasin, 653 F. Supp. 1200 (E.D.
rey v. Texas A & M Univ. Sys., 117 F.3d 242,            Mich. 1986) (arguing that this procedure has been
246 (5th Cir. 1997), and so is the dismissal on         used by many courts). Torres, however, has failed to
summary judgment, Wallace v. Tex. Tech                  raise this argument on appeal (and apparently in the
Univ., 80 F.3d 1042, 1047 (5th Cir. 1996).              district court) and so has waived it. See, e.g., United
The dismissal of all claims against the federal,        States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir.
state, local, and CIA unnamed officers or               2000). At the very least, she could have argued that
agents in their personal or official capacity was       it was her intention to determine the identity of the
proper because these agents were not served             unknown agents through discovery, but she failed to
despite Torres’s receipt of an extension of time        raise that argument, as well, on appeal. See, e.g., Li
beyond the 120-day statutory limit. See FED.            Kin Wah v. Wu Hak Kong, 1986 WL 3784
R. CIV. P. 4(m), Jackson v. Widnall, 99 F.3d            (S.D.N.Y. March 26, 1986).
710, 712 n.1 (5th 1996) (dismissing suit                   4
                                                             See Seminole Tribe v. Florida, 517 U.S. 44, 54
against defendants that were not timely
                                                        (1996) (holding that federal courts are without juris-
                                                        diction to consider suits against unconsenting states
                                                        pursuant to either federal or state law).

                                                    3
immunity.5 The tort claims against the CIA are                                      C.
also barred because Torres did not file suit                   Torres’s constitutional and civil rights claims
within six months of the CIA’s denial of her                against the CIA are barred by federal sovereign
claims as required by 28 U.S.C. § 2401(b).6                 immunity. Affiliated Professional Home Health
We also affirm the summary judgment on the                  Care Agency v. Shalala, 164 F.3d 282, 286 (5th
tort claims against CNN and CBS because                     Cir. 1999). To make a claim under §§ 1981 and
they are entirely without merit.7                           1982 against the remaining defendants, Torres
                                                            must allege that defendants’ interference with
                                                            her ability to get a job and to contract and re-
   5
      Travis v. City of Mesquite, 830 S.W.2d 94,            spectively with her right to purchase, sell, hold,
104 (Tex. 1992) (stating that political subdivisions        or convey property was racially motivated.8
of the State of Texas are immune from tort liability        Torres only alleged that the interference was a
absent consent to be sued). The Texas Tort Claims           result of her advocacy of unpopular pro-choice
Act does not waive immunity for the intentional             beliefs. Because she never alleged racial moti-
tort claims asserted by Torres.
                                                            vation, the claims under §§ 1981 and 1982 were
   6
     Torres received the letter of denial from the          correctly dismissed.
CIA on September 10, 2001, and sued on Aug-
ust 28, 2002.                                                  Torres’s claims under §1985(3) similarly fail
                                                            because she did not allege that racial or other
   7
      With respect to the assault and battery claim,        invidious class-based animus motivated the al-
Torres was unable to meet the “physical contact”            leged conspiracy to violate her constitutional
requirement, given her deposition testimony that            rights. Although Torres did allege that the con-
she never had physical encounters with anyone               spiracy was motivated by opposition to her pro-
from CBS or CNN. Torres was also unable to                  abortion beliefs, “opposition to abortion” does
make a claim for intentional infliction of emotional
distress because she conceded that had no physical
encounters with anyone from CNN and CBS,
which contradicts her assertion that the defendants            7
                                                                (...continued)
subjected her to electric shock and torture that            privacy fails because she admitted she does not know
caused her severe emotional distress. Additionally,         to whom the two voices of individuals inside her
as the district court correctly pointed out, the mere       home belong. Her unsubstantiated allegations that
insults that Torres alleges were uttered by persons         they may belong to persons at CNN or CBS are not
at CNN and CBS individuals do not rise to the               competent summary judgment evidence and fail to
level of extreme and outrageous conduct that                raise an issue of material fact as to whether CNN or
Torres must prove to make a claim for intentional           CBS intentionally intruded, physically or otherwise,
infliction of emotional distress. Thomas v. Clayton         on her solitude, seclusion, or private affairs or
Williams Energy, Inc., 2 S.W. 3d 734, 741 (Tex.             concerns.
App.SSHouston [14th Dist.] 1999, no pet.).
                                                               8
                                                                  See Green v. State Bar of Tex., 27 F.3d 1083,
   The claim for slander also fails as a matter of          1086 (5th Cir. 1994) (requiring proof, inter alia, of
law because Torres admitted that the alleged slan-          intent to discriminate on the basis of race to make
derous statements were not published to a person            § 1981 claim); Shaare Tefila Congregation v. Cobb,
other than Torres. See, e.g., Baubles & Bead v.             481 U.S. 615 (1989) (indicating that only racially-
Louis Vuitton, S.A., 766 S.W. 2d 377, 380 (Tex.             motivated actions are actionable under § 1982 and
App. 1989). Last, Torres’s claim for invasion of            that Jews and Arabs are races that Congress intended
                                     (continued...)         to protect under the statute).

                                                        4
not constitute the class-based invidious animus            Texas Commission on Civil Rights. Moreover,
required by that statute.9                                 she alleged that the discrimination ended in
                                                           2002. Her complaint with the EEOC was filed
    The claims against the city and county un-             after October 2003 and thus was not within the
der §1983 were properly dismissed under rule               statutory period, because it was more than 180
12(b)(6) because Torres failed to allege the ex-           days after the alleged discrimination ended.
istence of a city or county policy that resulted
in the deprivation of her rights. She merely                                       III.
claimed acts on part of unknown agents of the                 Torres avers that the district court abused its
county or city, for which the two entities                 discretion by denying her motion for reconsider-
cannot be found vicariously liable. Monell v.              ation, to vacate judgment, and for a new trial.
New York City Dep’t of Social Serv., 436 U.S.              The motion itself seeks relief only under Federal
658, 690 (1978). The § 1983 claims against                 Rule of Civil Procedure 59(a) and (e) and ex-
CNN and CBS were also properly dismissed                   pressly disclaims any relief under Federal Rule of
on summary judgment because there is nothing               Civil Procedure 60.
in the record, except Torres’s unsubstantiated
allegations, that either acted in concert with                 The denial of a rule 59(a) motion for new trial
any state government officials.10                          is reviewed for abuse of discretion and is ordi-
                                                           narily not appealable unless new matters arise
   Summary judgment against all defendants                 after entry of judgment. Youmans v. Simon, 791
on the title VII claims was also appropriate.              F.2d 341, 349 (5th Cir.1986). Torres fails to
Under title VII, exhaustion of administrative              specify in her appellate brief what the new
remedies is a prerequisite for maintaining a               matters are. In her motion for new trial, she
cause of action. Failure to exhaust remedies               asserts that she found new evidence of employ-
results in dismissal on the merits. Dao v. Au-             ment applications and other documentary evi-
chan Hypermarket, 96 F.3d 787 (5th Cir.                    dence supporting her claim of employment
1996). Torres admitted at the October 24,                  discrimination. Even if this were true, this evi-
2004, hearing that she has never filed a dis-              dence is immaterial, because it does not pertain
crimination complaint with the EEOC or the                 to or negate the determination that Torres’s
                                                           claim is time-barred for failure to exhaust her
                                                           administrative remedies within the statutorily-
   9
      See Bray v. Alexandria Women’s Health                mandated time frame.
Clinic, 506 U.S. 263, 269 (1993) (“Respondents
assert that there qualifies alongside race discrimi-           The denial of a rule 59(e) motion to alter or
nation, as an ‘otherwise class-based, invidiously          amend the judgment is appealable and is re-
discriminatory animus’ covered by the 1871 law,            viewed for abuse of discretion. Id. Torres con-
opposition to abortion. Neither common sense nor           tends the district court committed a manifest er-
our precedents support this.”). Bray held that the         ror of law when it cited Tolbert v. United States,
class discriminated against under § 1985(3) “can-          916 F.2d 245 (5th Cir. 1990), which held that a
not be defined simply as the group of victims of the       failure to exhaust administrative remedies de-
tortious action.” Id..                                     prives the court of subject matter jurisdiction.
   10                                                      We note that this argument is relevant only to
     See Wallace, 80 F.3d at 1047 (stating that
“unsubstantiated assertions” will not satisfy the
                                                           Torres’s employment discrimination claims.
non-movant’s burden).                                      Even for those claims, although Zipes v. Trans

                                                       5
World Airlines, Inc., 455 U.S. 385, 393                        Cosmair only holds that one specific prereq-
(1982), holds that failure to exhaust remedies             uisite for granting preliminary injunctive relief,
is not a jurisdictional bar, Torres loses because          namely “irreparable injury,” may be presumed
failure to exhaust administrative remedies is              from the very fact that the statute has been vio-
nonetheless a prerequisite to maintaining suit             lated. Id. It does not support in any way the
under both Zipes and the statute.                          proposition that any other of the four prerequi-
                                                           sites for preliminary injunctive relief (e.g. sub-
                      IV.                                  stantial likelihood of success on the merits)
                       A.                                  could be eliminated. Even assuming, arguendo,
   The denial of a temporary restraining order             that Cosmair had included the cited language,
or preliminary injunction is reviewed for abuse            Torres waived this argument by failing to point
of discretion.11 Torres contends the district              to any “express statutory language” in the stat-
court erred in denying her preliminary equita-             utes at issue in this case (or caselaw discussing
ble relief because the court considered only               such language) authorizing the elimination of the
one of the four prerequisites of a claim for in-           requirement that a plaintiff establish substantial
junctive relief, namely Torres’s likelihood of             likelihood of success on the merits.13
success on the merits. Torres’s novel claim is
at best frivolous.12                                          Torres also claims the district court errone-
                                                           ously concluded that there was no substantial
    Torres further cites EEOC v. Cosmair, Inc.,            likelihood of success on the merits because there
821 F.2d 1085, 1090 (5th Cir. 1987), for the               “were facts to the contrary.” But the only facts
proposition that “[w]hen a statute authorizes              she cites in her appellate brief in support of her
injunctive relief, the express statutory language          entitlement to injunctive relief are facts related to
may eliminate some equitable factors required              her alleged injury. Yet Torres’s losses, even if
for obtaining injunctive relief.” The opinion,             real, are not legally remediable injuries in light of
however, does not contain the sentence Torres              defendants’ Eleventh Amendment defense,
quotes. The closest language to that “quoted”              Torres’s failure to exhaust remedies, failure to
by Torres is “[w]hen an injunction is expressly            serve some defendants, and her own admissions
authorized by statute and the statutory condi-             with respect to other defendants. Therefore,
tions are satisfied, the movant need not estab-            absent more, Torres’s injuries are insufficient to
lish specific irreparable injury to obtain a               establish a likelihood of success on the merits.
preliminary injunction.” Cosmair, 821 F.2d at
1090.
                                                                                  B.
                                                              Torres asserts that the district court erred in
   11
     S. Monorail Co. v. Robbins & Myers, Inc.,             denying her a permanent injunction. She does
666 F.2d 185, 186 (5th Cir. 1982); Plains Cotton           not brief legal authority or pertinent facts ex-
Coop. Ass'n v. Goodpasture Computer Serv., Inc.,           plaining why she would be entitled to a per-
807 F.2d 1256, 1259 (5th Cir.1987).
   12
       See, e.g., Plains Cotton Coop., 807 F.2d at
1259 (“A preliminary injunction may not issue un-
                                                              13
less the movant carries the burden of persuasion as             Cf. L&A Contracting Co. v. S. Concrete Servs.,
to all four prerequisites”); Vision Ctr. v. Opticks,       17 F.3d 106, 113 (5th Cir. 1994) (finding waiver of
Inc., 596 F.2d 111, 114 (5th Cir. 1979) (same).            argument on appeal for failure to cite authority).

                                                       6
manent, as opposed to a temporary, injunction,14               AFFIRMED.
so she has waived this argument. Cf. L&A
Contracting, 17 F.3d at 113.

                      C.
   Lastly, Torres claims the district court
abused its discretion in denying her motions
for protective orders because she “had given
sufficient documentary testimony as to facts
supporting the allegations of attacks on her
professional work and reputation and violence
committed against her by the appellees, partic-
ularly when she was on the premises of Webb
County, Law Offices of Vinson & Elkins, and
other defendants-appellees.” Torres fails to
explain what these orders were supposed to
protect or what her legal basis for entitlement
to each of these protective orders was.

    Torres’s only description of the protective
                                                               15
orders is found in the facts section of the brief,               (...continued)
where we learn that the district court denied a             24, 2003, conference, Torres described to the district
motion for protective order on March 4, 2003,               court her need for a protective order as follows:
and that a “second motion for a protective or-
der was denied since plaintiff Appellant was                   This motion was filed because at the deposition of
not able to provide a doctor’s affidavit as to                 September the 18th, I was sitting there and was
her infirmities and injuries incurred by her                   being deposed, and some kind of device started
                                                               heating up, something in my head . . . . Some of
while she was being deposed at the law office
                                                               the things they said in there were not, you know,
of the Appellees.” Given the paucity of infor-                 competent, because I was thinking about it later
mation provided by Torres on appeal, and                       and it must have disturbed my thinking that whole
even construing her statements as liberally as                 heating device and that pain I was feeling in the
possible, we are at a loss in trying to under-                 head.
stand her legal and factual theory as to how
the district court erred in denying the protec-                 It appears that other claims for striking the testi-
tive orders.15                                              mony were that the testimony was not competent
                                                            because Torres was unable to obtain counsel to rep-
                                                            resent her and that the testimony included “irrelevant,
   14                                                       immaterial and privileged matters and should be
       Torres also fails to state the standard of re-
view for a denial of a permanent injunction; she            excluded from evidence.” Even with this additional
cites only the standard for a preliminary injunction.       information, which we normally would not need to
                                                            consider given Torres’s failure to brief the issue in
   15
      Apparently, the second motion for a protec-           any cogent manner, we do not see any abuse of
tive order was actually a motion to strike Torres’s         discretion in the court’s decision to request a doctor’s
deposition of September 18, 2003. At the October            affidavit to confirm that her testimony at the deposi-
                                     (continued...)         tion was not competent.

                                                        7
