     Case: 09-10737     Document: 00511081353          Page: 1    Date Filed: 04/15/2010




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

                                                  FILED
                                                                            April 15, 2010
                                     No. 09-10737
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

LUTHER WAYNE COBB, also known as Luther Wayne Ware,

                                                   Plaintiff - Appellant

v.

TIMOTHY SIMMONS, Senior Warden; JOE NUNN, Senior Warden;
MARYANN LAMB, Librarian II; MELONIA SIMMON, Correctional Officer;
GLEN H. WHITFIELD, Assistant Warden; VICKY BARROW, Assistant
Program Admin.,

                                                   Defendants - Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:09-CV-34


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Luther Wayne Cobb, Texas prisoner # 1294301, appeals from the district
court’s dismissal of his civil rights complaint as frivolous and for failure to state
a claim. Cobb does not contend that the district court erred by finding that the
claims he raised in his 42 U.S.C. § 1983 complaint were without merit. Instead,
he principally asserts that the district court erred by dismissing his complaint

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-10737

without granting him the chance to amend his complaint with a supplemental
memorandum of law.
      In general, it is improper for a district court to dismiss a pro se complaint
without affording the plaintiff the opportunity to amend. Bazrowx v. Scott, 136
F.3d 1053, 1054 (5th Cir. 1998); cf. F ED. R. C IV. P. 15(a) (noting that plaintiff
may amend his complaint once as a matter of course at any time before a
responsive pleading is served). However, any such error may be ameliorated if
the plaintiff has pleaded his “best case.” Bazrowx, 136 F.3d at 1054 & n.7 (citing
Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir. 1986)). Cobb had ample
opportunity to set forth the basis for his claims, including, inter alia, in his
responses to the district court’s questionnaire and his objections to the
magistrate judge’s (MJ’s) reports. Thus, as there is no indication that Cobb had
not set forth his best case, any error by the district court in denying him the
opportunity to amend his complaint before dismissing it was harmless. Id.
      The district court also did not erroneously deny Cobb’s postjudgment
motion to file an amended complaint. “In cases where a party seeks to amend
[his] 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.” Vielma v. Eureka Co., 218 F.3d 458, 468 (5th Cir. 2000) (citation
and internal quotation marks omitted). Here, despite his prejudgment requests
to file a legal memorandum, Cobb did not move before judgment to amend his
complaint. Moreover, Cobb’s motion to file an amended complaint and the
accompanying memorandum merely reiterate facts and arguments from his
prejudgment pleadings. Thus, because Cobb’s postjudgment motion to amend
contains matters that he raised – or reasonably could have raised – before the
court’s order of dismissal, he has not shown that the district court abused its
discretion in denying his motion. See Rosenzweig v. Azurix Corp., 332 F.3d 854,
865 (5th Cir. 2003); Vielma, 218 F.3d at 468.

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      Finally, to the extent that Cobb argues that the district court erred by not
finding that he raised adequate grounds in his Federal Rule of Civil Procedure
59(e) motion to justify the filing of a legal memorandum, his claim is unavailing.
His Rule 59(e) motion was not premised upon newly discovered evidence, and he
did not demonstrate any manifest error of law or fact that called into question
the correctness of the court’s decision not to permit the requested amendment.
See Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990). The district
court’s order dismissing his Section 1983 complaint does not constitute new
evidence enabling the filing of a legal memorandum. Cobb was aware before the
order that his prior requests to file a legal memorandum were not granted, and
he has not otherwise shown that the court’s decision not to allow the filing of a
legal memorandum was erroneous.
      Cobb also argues that the district court erroneously concluded that he was
required to present in a habeas action his claim that he was denied access to the
courts. However, the district court at no point suggested that Cobb’s access-to-
the-courts claim was improper for a Section 1983 proceeding or otherwise
ordered Cobb to bring that claim in a habeas action. Instead, the court was
addressing Cobb including in his objections to the MJ’s supplemental report a
detailed analysis of the effectiveness of his trial counsel, the sufficiency of the
protections he received under the Sixth Amendment, and the validity of evidence
introduced at trial. Because these claims exclusively concern the fact of Cobb’s
conviction rather than the conditions of his confinement, they more properly
would be brought in a habeas action. See Cook v. Tex. Dep’t of Criminal Justice
Transitional Planning Dep’t, 37 F.3d 166, 168 (5th Cir. 1994). The district court
therefore did not err in noting that, to the extent that Cobb sought to incorporate
these claims in his objections to the MJ’s supplemental report, the claims were
proper for Cobb’s pending habeas application.
      The district court’s dismissal counts as a strike against Cobb for purposes
of 28 U.S.C. § 1915(a). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.

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1996). Cobb is hereby cautioned that, if he accumulates three strikes, he may
not proceed in forma pauperis in any civil action or appeal filed while he is
incarcerated or detained in any facility unless he is under imminent danger of
serious physical injury. See 28 U.S.C. § 1915(g).
      AFFIRMED; SANCTION WARNING ISSUED.




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