IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

N

o

 00-40504

_______________

FREDA SUSAN MOWBRAY, ALSO KNOWN AS SUSIE MOWBRAY,

Plaintiff-Appellant,

VERSUS

CAMERON COUNTY, TEXAS; BENJAMIN EURESTI, JUDGE; EDMUND CYGANIEWICZ;

LUIS V. SAENZ; MENTFORD HESSKEW, “DUSTY”; GEORGE GAVITO; STEVE ROBERTSON; ESTELLA MAURICIO; JEAN MOWBRAY; JAMES MOWBRAY;

MARGO MOWBRAY; AND KRISTEN MOWBRAY,

Defendants-Appellees.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
2

_______________

N

o

 00-41229

_______________

FREDA SUSAN MOWBRAY, ALSO KNOWN AS SUSIE MOWBRAY,

Plaintiff-Appellee,

VERSUS

TEXAS CAMERON COUNTY; ET AL,

Defendants,

GEORGE GAVITO,

Defendant-Appellant.

_________________________

Appeals from the United States District Court

for the Southern District of Texas

_________________________

December 6, 2001

Before JONES, SMITH, and DEMOSS,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

After Fredda “Susan” Mowbray (“Mowbray”) had served nine years in prison for her

husband’s murder, her conviction was set

aside, whereupon, under 42 U.S.C. § 1983 and

state law, she sued the county that had jailed

her and the three prosecutors, three police officers, and the county lab technician who had

participated in her trial; she also sued her husband’s heirs to regain the proceeds from his

life insurance policy. The district court dismissed all of Mowbray’s claims but one,

against Officer George Gavito. 

Mowbray appeals several FED. R. CIV. P.

12(b)(6) dismissals and a summary judgment

based on prosecutorial immunity, absolute

witnessimmunity, and qualified immunity, and

a dismissal based on res judicata. Gavito

appeals a denial of summary judgment based

on qualified immunity. We affirm the dismissals and summary judgment that Mowbray
3

challenges, but we reverse the denial of summary judgment to Gavito and render judgment

for him.

I.

One night in September 1987, Mowbray

was lying in bed with her husband, Bill Mowbray, when he was shot. Mowbray claimed

that her husband had committed suicide; at

least twice before, he had attempted suicide,

once by shooting himself. Bill Mowbray’s car

dealership was on the brink of failure, and

apparently he had vowed to kill himself rather

than face jail for tax evasion or commercial

fraud.

Estelle Mauricio, a reserve deputy sheriff,

was the first to arrive at the residence after the

shooting. She testified that she found the deceased still alive, shot through the head, and

lying on hisleft side with the bed covers pulled

up to his shoulder. The bullet had entered the

right side of his head, exited the left, and

wounded his left hand, which was under his

head with a pillow between his head and left

hand. His right hand was lying across his chest

under the bed covers. No blood or brain matter was on his right hand, and Mauricio never

saw his hand being washed at home or in the

hospital. Lieutenant George Gavito of the

Cameron County Sheriff’s Department also

was present at the scene.

Dr. Dahm, who conducted the autopsy,

stated that if the deceased had shot himself,

there would have been blood and brain matter

covering his right hand, fingers, and forearm.

Finding no blood, Dahm concluded that the

death was a murder.

Mowbraywas considered a suspect. In early October 1987, Steve Robertson, a lab technician at the Texas Department of Public Safety (“DPS”), met with police officer Mentford

“Dusky” Hesskew to discuss the theory that

Mowbray had killed her husband. Hesskew

was principally employed by the Austin Police

Department but also taught classes at the DPS

Academy on high impact spatter. Hesskew

performed a luminol test on the nightgown

Mowbray wore that night to detect the presence of blood. Because luminol reacts to

substances other than blood, luminol tests are

only presumptive in nature. 

On November 3, 1987, Robertson and

Hesskew met with prosecutors Benjamin Euresti and Edmund Cyganiewicz and reported

that the nightgown had tested positive for

blood. On November 9, Robertson conducted

two confirmatory blood tests on the nightgown, both of which were negative. At the

habeas corpus proceedings, he explained that

the negative results could have resulted from

the excessive testing the nightgown had already undergone. The tests for the gunshot

residue could have destroyed the protein in the

blood, and the chemicals sprayed to detect

lead residue could have diffused or dissolved

the red stains. Robertson never reported these

negative resultsto the district attorneys, Hesskew, or Mowbray’s defense counsel.

The prosecution asked Herbert MacDonnell, an expert on blood spatter, to examine

Mowbray’s nightgown. On November 18,

MacDonnelltoldEuresti andCyganiewicz that

he had found no indication of blood stains or

high velocity impact spatter of the sort that

would have been present had Mowbray shot

her husband while wearing a nightgown. He

concluded that if Mowbray had shot her husband, she was not wearing a nightgown at the

time.

Cyganiewicz, Euresti, Gavito, Mauricio,
4

and assistant district attorney Luis Saenz prepared a “mock-up” ofthe shooting scene. The

mock-up did not alter MacDonnell’s conclusions that he had listed in his report. On December 2, 1987, MacDonnell discussed his report with Gavito and stated that he thought

Mowbray had shot her husband while she was

naked. The only record of MacDonnell’s

statement comesfromGavito’s depositiontestimony. MacDonnell’s report was made available to Mowbray’s defense counsel ten daysto

two weeks before trial.

On December 4, 1987, Mowbray was indicted for murder. At trial, the prosecution offered Hesskew’s and Robertson’s testimony

that blood was found on the nightgown; neither side called MacDonnell. Mowbray was

convicted and sentenced to life imprisonment.

After her petition for writ of habeas corpus

was granted and the conviction was set aside,

see Ex Parte Mowbray, 943 S.W.2d 461 (Tex.

Crim. App. 1996), she was acquitted at a

second trial.

II.

MowbraysuedCameronCounty, three prosecutors, three police officers, and a countylab

technician, alleging conspiracy to violate her

civilrights, false imprisonment, malicious prosecution, abuse of process, slander, and intentional infliction of emotional distress. She also

sued Jeanne, James, and Margo Mowbray to

regain the proceeds of her husband’s life insurance policy.

III.

We review a rule 12(b)(6)1dismissal de

novo, accepting all well-pleaded facts as true.

Questions of fact are viewed in the light most

favorable to the plaintiff; questions of law are

reviewed de novo. Green v. State Bar of Tex.,

27 F.3d 1083, 1086 (5th Cir. 1994).

Mowbray argues that the district court

erred in extending absolute immunityto Euresti, Cyganiewicz, and Saenz, whomshe accuses

of “shopping for experts,” “laboring to sell

these experts on their theory,” and “rejecting

the leading authority in the field . . . and instead selecting an expert who perpetrated junk

science.” Mowbray also complains that the

prosecutors did not turn over exculpatory evidence to the defense until ten days before trial.

Under § 1983, prosecutors are entitled to

absolute immunity for acts performed as advocates of the state. Imbler v. Pachtman, 424

U.S. 409, 430-31 & n.33 (1976). For “acts of

investigationor ‘administration,’” prosecutors

are entitled to only qualified immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993).

Absolute immunity extends to a prosecutor’s

actions “‘preliminary to the initiation of a prosecution and . . . apart from the courtroom.’”

Id. at 272 (quoting Imbler, 424 U.S. at 431

n.33). This includes a prosecutor’s decision

on “which witnesses to call and what other

evidence to present,” Imbler, 424 U.S. at 431

n.33, and “an out-of-court ‘effort to control

the presentation of [a] witness’ testimony,’”

Buckley, 509 U.S. at 272-73 (quoting Imbler,

424 U.S. at 430 n.32) (alteration in original).

All the acts Mowbray lists involve the prosecutors’ choosing expert witnesses, preparing

those witnesses for trial, and performing the

state’s trial duties. Because these acts fall under the protection of absolute immunity, the

district court did not err in dismissing suit asto

them. 1

 Rule 12(b)(6) authorizes a court to dismiss a

complaint for “failure to state a claim upon which

relief can be granted.” FED. R. CIV. P. 12(b)(6). 
5

IV.

Although Mowbray argues that the court

erred in failing to address herslander claimunder § 1983, she has not alleged facts sufficient

to state a claim. She asserts that after meeting

with MacDonnell, Euresti opined that “he was

now confident that he could get an indictment.” Mowbray never avers that this comment (or any other) deprived her of a constitutional or other federalright;she states only that she “was publicly humiliated and subjected to scorn and ridicule during the investigative phase of the prosecution” and that she

was “put through an emotionally damaging

trial.” Such allegations do not state a claim

under § 1983.

V.

Mowbray contends that the court erred in

dismissing her § 1983 claims against Hesskew

and Robertson for conspiracy to commit perjury and violation of a duty under Brady v.

Maryland, 373 U.S. 83 (1963), to disclose exculpatory evidence. Although witnesses are

entitled to absolute immunity against § 1983

suits based on their testimony in a criminal

trial, Briscoe v. LaHue, 460 U.S. 325, 329-31

(1983), it is less certain whether the rule of

Briscoe extends to claims that a witness entered a pre-trial conspiracy to commit perjury.

Ofthe eight circuitsthat have addressed the

issue, seven have extended absolute witness

immunity.2 The Second Circuit stands alone in

reaching a contrary conclusion.3

We find the reasoning ofthe majority of circuits persuasive. As a matter oflogic, “[a] person may not be prosecuted for conspiring to

commit an act that he may perform with impunity.” House, 956 F.2d at 720. Hesskew and

Robertson cannot be liable under § 1983 for

conspiracy to commit perjury where § 1983

grants them absolute immunity for that act.4 

Moreover, allowing such conspiracy suits

would permit most §1983 perjury suits to be

restyled as § 1983 claims for conspiracy to

commit perjury, because “a witnessrarely prepares her testimony on her own.” Franklin,

201 F.3d at 1101-02. Accordingly, we conclude that absolute witness immunity bars

§ 1983 suitsfor conspiracy to commit perjury.

Mowbray’s second claim, that Hesskew and

Robertson violated their duties under Brady

when they failed to furnish exculpatory Brady

2 Franklin v. Terr, 201 F.3d 1098, 1101-03

(9th Cir. 2000); Jones v. Cannon, 174 F.3d 1271,

1288-89 (11th Cir. 1999); Watterson v. Page, 987

F.2d 1, 9 (1st Cir. 1993); Snelling v. Westhoff, 972

F.2d 199, 200 (8th Cir. 1992); House v. Belford,

956 F.2d 711, 720-21 (7th Cir. 1992); Miller v.

Glanz, 948 F.2d 1562, 1569 (10th Cir. 1991);

(continued...)

2

(...continued)

Alioto v. City of Shively, 835 F.2d 1173, 1174 (6th

Cir. 1987).

3

San Filippo v. U.S. Trust Co., 737 F.2d 246,

254-55 (2d Cir. 1984).

4 Cf. Hale v. Townley, 45 F.3d 914, 920-21

(5th Cir. 1995) (finding that where each state action alleged to have harmed the plaintiff is protected by qualified immunity, there can be no

§ 1983 suit for conspiracy to violate plaintiff’s

constitutional rights); Holloway v Walker, 765

F.2d 517, 522 (5th Cir. 1985) (“It is a well established rule that where a judge's absolute immunity

would protect him from liability for the performance of particular acts, mere allegations that he

performed those acts pursuant to a bribe or conspiracy will not be sufficient to avoid the immunity.”).
6

material to Mowbray’s defense counsel, is

without merit. Brady imposes a duty on

prosecutors to share exculpatory evidence

with the defense. Mowbray cites, and our research reveals, no case extending Brady to

police officers or lab technicians.5 Accordingly, Mowbray has failed to allege an actionable claim against Hesskew or Robertson.

VI.

Mowbray argues that the district court

erred in dismissing her § 1983 claim against

James Mowbray for conspiracy to violate her

civil rights. While it is possible, in limited circumstances, to allege a § 1983 conspiracy

against a private actor, Brummett v. Camble,

946 F.2d 1178, 1184-85 (5th Cir. 1991),

Mowbray fails to do so. Her complaint consists almost entirely of conclusional allegations. The only facts she provides are that

James Mowbraymet with the police, answered

their questions, and took an interest in the

investigation of his brother’s death; these do

not state a claim under § 1983.

VII.

Mowbray challenges the dismissal of her

§ 1983 claims against Cameron County. She

first argues that the county is liable for the unconstitutional acts of its final policymakers.

Although Turner v. Upton County, 915 F.2d

133 (5th Cir. 1990), does allow such suits,

Mowbray has alleged constitutional deprivations only against Euresti, Cyganiewicz,

Saenz, Hesskew, Gavito, Robertson, and

MauricioSSprosecutors, lower level police

officers, and a lab technician. 

The sheriffisthe county’sfinalpolicymaker

in this context. Id. at 136. The district attorney, “when acting in the prosecutorial capacity

[or]instituting criminalproceedingsto enforce

state law,” is not. Esteves v. Brock, 106 F.3d

674, 678 (5th Cir. 1997). Mowbray has alleged no constitutional deprivation against the

county sheriff, and her allegations against the

prosecutors involve only actions as state

officers; accordingly, the district court did not

err in dismissing her Turner claim.

Mowbray also arguesthat the county is liable for the unconstitutional acts of its officers

because it failed to train them on their Brady

duties. See City of Canton v. Harris, 489 U.S.

378 (1989). Because Euresti, Cyganiewicz,

and Saenz are state officers, the county cannot

be liable for a failure to train them. For Hesskew, Gavito, Robertson, and Mauricio, Mowbray failsto allege a constitutional deprivation

and thus fails to state a claim under § 1983.

As discussed supra, neither police officers nor

lab technicians have a Brady duty to disclose

exculpatory information.

VIII.

We review a grant or denial of summary

judgment de novo, NCNB Tex. Nat’l Bank v.

Johnson, 11 F.3d 1260, 1264 (5th Cir. 1994),

applying the same standard as did the district

court, Deas v. River W., L.P., 152 F.3d 471,

475 (5th Cir. 1998). “Summary judgment is

proper when no issue of material fact exists

and the moving party is entitled to judgment as

a matter of law. Questions of fact are viewed

in the light most favorable to the nonmovant

and questions of law are reviewed de novo.”

Id.

5 Mowbray does not allege, nor do the facts

support a finding, that Hesskew and Robertson

elicited false evidence and deliberately concealed

exculpatory evidence fromall parties, including the

prosecution. Cf. Geter v. Fortenberry, 849 F.2d

1550, 1558 (5th Cir. 1988) (concluding such

allegations defeat a police officer’s qualified

immunity under § 1983).
7

Mowbray argues that the court erred in

granting summary judgment for Mauricio on

the § 1983 claimsthat Mauricio fabricated trial

testimony and failed to disclose exculpatory

evidence. Absolute witness immunity insulates

Mauricio fromthe § 1983 perjury claim,so the

district court was correct to dismiss it under

rule 12(b)(6). Briscoe, 460 U.S. at 329-31.

For the failure to disclose claim, Mowbray

provides only conclusional allegations. Her

brief concedesthat there is no factual basis for

her claim and that she has only suspicion that

Mauricio knew of exculpatoryevidence. Mauricio, on the other hand, submitted an affidavit

attesting that she knew of no exculpatory evidence. Consequently, the court did not err in

granting summary judgment for Mauricio.6

IX.

A.

Gavito contends that the court erred in denying his motion for summary judgment on

qualified immunity grounds. As an initial matter, we must verify our jurisdiction over this

appeal. Mosley v. Cozby, 813 F.2d 659, 660

(5th Cir. 1987). 

“[D]istrict court orders denying summary

judgment on the basis of qualified immunity

are immediatelyappealable underthe collateral

order doctrine, when based on an issue of

law.” Cantu v. Rocha, 77 F.3d 795, 802 (5th

Cir. 1996). Orders “are based on an issue of

law when they concern only application of established legal principles, such as whether an

official’s conduct was objectively reasonable in

light of clearly established law, to a given . .

. set of facts.” Id. (citing Johnson v. Jones,

515 U.S. 304 (1995)). 

Mowbray and Gavito rely on the same record in their briefs; the only dispute is whether

the district court correctly applied the law of

qualified immunity to these facts. We thus

conclude we have jurisdiction to hear this

appeal.

B.

Mowbray alleges a § 1983 claim for conspiracy to violate her civil rights, based on

(1) failure to disclose exculpatory evidence to

Mowbray’s defense counsel; (2) manufacture

of false evidence; and (3) suppression of evidence. Before we can reach the § 1983 conspiracy claim, we must determine whether

qualified immunity applies to each state claim.

Hale v. Townley, 45 F.3d 914, 920-21 (5th

Cir. 1995). If all three acts fall under qualified

immunity, there can be no § 1983 conspiracy

claim. Id.

As a police officer, Gavito enjoys qualified

immunity for his official acts. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To overcome qualified immunity, Mowbray must show

Gavito (1) violated a constitutional right that

(2) was clearly established at the time of the

violation (3) through conduct that was objectively unreasonable. Kipps v. Caillier, 197

F.3d 765, 768 (5th Cir. 1999), cert. denied,

121 S. Ct. 52 (2000).

Mowbray claims that Gavito had a Brady

duty to tell defense counsel about his lunch

meeting with MacDonnell at which MacDonnell stated he believed Mowbray had shot

her husband while not wearing a nightgown.

As we have said, even if MacDonnell’s state6 Further, as discussed supra, police officers

have no duty under Brady to disclose exculpatory

evidence to defense counsel. Even had Mowbray

alleged facts showing that Mauricio withheld evidence, Mowbray’s claim would fail as matter of

law.
8

ment were exculpatory, police officers have no

constitutional duty under Brady to disclose

exculpatory evidence to defense counsel. For

her assertion that Gavito manufactured false

evidence and suppressed evidence, Mowbray

provides only conclusional allegations. 

Even under a generous reading of Mowbray’s complaint and brief, the only possible

factual basis she alleges is that Gavito participated in a “mock-up” of the crime scene and

arrested her pursuant to a warrant. But Mowbray provides no evidence that Gavito acted

improperly in the mock-up or that there were

any constitutional defects in her arrest. She

has not shown Gavito violated any constitutional right, much less one clearly established

at the time of her prosecution. Therefore,

Gavito is entitled to qualified immunity for his

actions, and the § 1983 conspiracyclaimbased

on them must fail.

Mowbray also lists a host of state law

claims for abuse of process, malicious prosecution, false imprisonment, and intentional

infliction of emotional distress. The state law

claims, like her § 1983 claim, consist mainly of

conclusionalallegations.7 Mowbray complains

that Gavito investigated the crime, participated

in a mock-up of the crime scene, arrested her,

and failed to disclose exculpatory evidence to

her defense counsel.

Police officers are entitled to official immunity from suits arising out of performance of

(1) discretionary duties (2) in good faith as

long as they are (3) acting within their authority. City of Lancaster v. Chambers, 883

S.W.2d 650, 653 (Tex. 1994). The defendant

claiming official immunity bears the burden of

proving all elements of the defense. Id. Under

Texas law, an officer’s investigation of a

crime, Wyse v. Dep’t of Pub. Safety, 733

S.W.2d 224, 227 (Tex. App.SSWaco 1986,

writ ref’d n.r.e.), and arrest of a suspect, Dent

v. City of Dallas, 729 S.W.2d 114, 117 (Tex.

App.SSDallas 1986, writ ref’d n.r.e.), are considered discretionary duties within police authority. Gavito thus satisfies the first and third

criteria for official immunity.

Texas law judges an officer’s good faith

under the same test federal courts employ for

qualified immunity determinations under

§ 1983. City of Lancaster, 883 S.W.2d at

656. Texas courts “look to whether a reasonable official could have believed his or her

conduct to be lawful in light of clearly established law and the information possessed by

the official at the time the conduct occurred.”

Id. (internal quotation marks and citations

omitted). Like qualified immunity, official immunity “protects all but the plainly incompetent or those who knowingly violate the law.”

Id. (internal quotation marks and citations

omitted). 

As we have stated, there is no evidence that

Gavito did anything illegal in investigating the

crime, participating in the mock-up, arresting

Mowbray, or failing to disclose MacDonnell’s

statements to defense counsel. Gavito’s actions thus are immune from state suit because

of official immunity. Because all of Mowbray’s claims against Gavito fail as a matter of

law, the district court erred in denying Gavito

summary judgment.

X.

After Mowbray was convicted, the proceeds from her husband’s life insurance policy

7 Because the state law claims arise out of the

same set of operative facts as do the federal claims,

we have supplemental jurisdiction to hear them. 28

U.S.C. § 1367.
9

were divested from her and awarded to the

deceased’s mother. Mowbray v. Metro. Life

Ins. Co., Civ. Ac. No. B-88-107 (S.D. Tex.

Apr. 24, 1991). Two years after her conviction was set aside, Mowbray filed a motion

in federal court requesting that the 1991 judgment be vacated, that Jeanne Mowbray repay

her the life insurance money, and that the court

“impose a constructive trust in said moneysso

received.” The court set aside the 1991 judgment but denied “all further relief prayed for.”

Mowbray v. Metro. Life Ins. Co., Civ. Ac. No.

B-88-107 (S.D. Tex. May 24, 1999).

Mowbray did not appeal the denial of her

constructive trust claim. In 1999, she filed her

first amended complaint in the instant case,suing James and Margo Mowbray,Jeanne Mowbray’s heirs, to impose a constructive trust on

the insurance proceeds. The defendants

moved to dismiss based on res judicata. The

court denied the motion because there was no

certified copy of the judgment in the record.

Defendants filed a second motion to dismiss,

omitting mention of res judicata because the

district court had stated it would not consider

such a motion. The court granted the motion,

raising the issue of res judicata sua sponte.

We review a dismissal based on resjudicata

de novo. Recoveredge L.P. v. Pentecost, 44

F.3d 1284, 1290 (5th Cir. 1995). We apply

federal law to determine the preclusive effect

of a federal judgment, even if that judgment

was based on state law. Id.

A.

Generally, res judicata is an affirmative defense that must be pleaded, not raised sua

sponte. FED. R. CIV. P. 8(c). We recognize

two limited exceptions to this rule; both apply

here. The first exception allows “[d]ismissal

by the court sua sponte on res judicata

grounds. . . in the interest of judicial economy

where both actions were brought before the

same court.” Boone v. Kurtz, 617 F.2d 435.

436 (5th Cir. 1980); accord United Home

Rentals, Inc. v. Tex. Real Estate Comm’n, 716

F.2d 324, 330 (5th Cir. 1983). Both actions

were brought in the same federal district court.

Further, like the judgments in Boone, the actions are “almost identical,” differing only in

the defendants’ names. The parties do not dispute the facts, so remanding would add nothing to the record and would only consume

judicial resources.

The second exception holdsthat “where all

of the relevant facts are contained in the record before us and all are uncontroverted, we

may not ignore their legal effect, nor may we

decline to consider the application of controlling rules oflaw to dispositive facts,simply because neither party hasseen fit to invite our attention by technically correct and exact pleadings.” Am. Furniture Co. v. Int’l Accommodations Supply, 721 F.2d 478, 482 (5thCir.

Unit A Mar. 1981). Here the facts are uncontested and the legal outcome unambiguous.

Reversal would not lead to a different outcome.

Additionally, the usual concerns preventing

a court from raising resjudicata sua sponte do

not apply. Mowbray “can claim no surprise or

prejudice.” Id. She certainly had notice of the

prior judgment; she had litigated it just a few

months earlier. Nor has she been denied “‘the

chance to argue . . . why the imposition of an

estoppel would be inappropriate.’” Id. (quoting Blonder-Tongue Labs. v. Univ. Found.,

402 U.S. 313, 350 (1971)). James and Margo

Mowbray had filed an earlier motion to dismiss

based on res judicata, which Mowbray had

ample opportunity to answer.
10

B.

Thus concluding that the district court did

not err in raising the issue, we addressit on the

merits. In American Furniture, we set forth

the requirements for a res judicata defense:

“(1) that the prior judgment must have

been rendered by a court of competent

jurisdiction; (2) that there must have

been a final judgment on the merits;

(3) that the parties, or those in privity

with them, must be identical in both

suits; and (4) that the same cause of

action must be involved in both suits.”

Id. (quoting Stevenson v. Int’l Paper Co., 516

F.2d 103, 108-09 (5th Cir. 1975)).

It is indisputable that all four requirements

are satisfied. The 1999 judgment decided the

issue, so the district court did not err in dismissing the claim.

In summary, the dismissals and summary

judgment entered against Mowbray are

AFFIRMED, and the denial of summary

judgment in favor of Gavito is REVERSED,

and judgment is RENDERED for him. All

outstanding motions are denied.