     Case: 13-10170       Document: 00512446428         Page: 1     Date Filed: 11/19/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        November 19, 2013
                                     No. 13-10170
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

REGINALD DALE PETERS,

                                                  Plaintiff-Appellant

v.

TEXAS COURT OF CRIMINAL APPEALS,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:12-CV-246


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:1
       Reginald Dale Peters, Texas prisoner # 1361704, filed a pro se pleading
entitled “Notice of Appeal on Motion for Leave to File Original Application for
Writ of Mandamus,” complaining that the Texas Court of Criminal Appeals
(TCCA) had unconstitutionally denied his writ of mandamus, through which he
had sought to have the state trial court clerk ordered to return his original
habeas corpus application and all attached documents, along with a written
admonishment of the defects in the application. The district court, construing

       1
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 13-10170

the pleading as either a Petition for Writ of Mandamus or a complaint pursuant
to 42 U.S.C. § 1983, dismissed the action without prejudice for failure to state
a claim. Peters thereafter filed a motion through which he purportedly sought
to correct clerical errors in his original complaint. The district court construed
the motion as a motion for new trial or to amend or alter the judgment pursuant
to Federal Rule of Civil Procedure 59 and denied it. Peters now appeals the
dismissal of his original complaint and the denial of his post-judgment motion.
He also contends that the district court should have granted him leave to amend
his complaint.
      After an independent review of the record, we agree with the district court
that although Peters attempts to couch his complaint in terms of a civil action
alleging violations of his constitutional rights, the only remedy he seeks against
the TCCA is in the nature of mandamus relief. Federal courts, however, do not
have the authority to direct a state court’s actions under the circumstances
alleged by Peters. See Moye v. Clerk, DeKalb County Superior Court, 474 F.2d
1275, 1275-76 (5th Cir. 1973); 28 U.S.C. § 1361. Moreover, “litigants may not
obtain review of state court actions by filing complaints about those actions in
lower federal courts cast in the form of civil rights suits.” Hale v. Harney, 786
F.2d 688, 690-91 (5th Cir. 1986). Accordingly, we agree that Peters failed to
plead facts sufficient to state a claim for relief that was plausible on its face. See
In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007).
      Also without merit is Peters’s challenge to the denial of his post-judgment
motion, which he contends should have been construed as a motion filed
pursuant to Federal Rule of Civil Procedure 60, rather than Rule 59. This
challenge, however, is based on the flawed contention that a motion for
reconsideration must be filed within 10 days of the entry of judgment for it to be
considered pursuant to Rule 59. Here, Peters’s post-judgment motion was
submitted for filing within 28 days of the entry of the judgment of dismissal and
hence was timely filed under Rule 59. See FED. R. CIV. P. 59(b). Aside from the

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                                   No. 13-10170

foregoing contention, Peters makes no argument that the district court erred in
denying his post-judgment motion, regardless of whether he filed it pursuant to
Rule 59 or Rule 60. He therefore has abandoned any argument regarding that
ruling. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993); Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      Further, the district court did not err in dismissing Peters’s complaint
without giving him the opportunity to amend. In general, a district court errs
if it dismisses a complaint for failure to state a claim without giving the plaintiff
“notice of the court’s intention to dismiss his suit or an opportunity to amend his
complaint.” Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998). Even so, we
have held that any such error “may be ameliorated . . . if the dismissal was
without prejudice,” as is the case here. Id. (emphasis added).
      AFFIRMED.




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