IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10170

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

November 19, 2013

Lyle W. Cayce

Clerk

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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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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