* Pursuant to 5 TH C IR

. 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opinion should not be published and is not precedent except under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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

March 3, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-40649

Summary Calendar

GENE E. DUDLEY,

Plaintiff-Appellant,

versus

N.L. CONNORS, Warden; UNKNOWN RICE, Caseworker;

MARIA ROSE, Counselor; KATHLEEN HAWKS, Director

of Bureau of Prisons, Washington, D.C.; PAUL

NICHOLAS; JOHN 2-5 DOES; R. ROUT, Mailroom

Personnel at El Reno Federal Correctional Institute;

UNKNOWN WILBURN, Officer, Mailroom Personnel;

RICHARD GOODSEAL, Mailroom Personnel; UNKNOWN

HENDERSON; Lieutenant, SHU Housing Unit Manager;

UNKNOWN HAMM, Officer; INSTITUTIONAL MANAGEMENT

SYSTEM OFFICER, El Reno Federal Correctional

Institute Management System Officer,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 5:00-CV-308

Before GARWOOD, EMILIO M. GARZA and BENAVIDES, Circuit Judges.

PER CURIAM: *

Gene E. Dudley, federal prisoner # 10 961-045, appeals the2

dismissal of his civil rights complaint. S ee Bivens v. Six Unknown

Named Agents

, 403 U.S. 388 (1971). Dudley filed a purported notice

of appeal from the judgment of dismissal; however, that pleading

did not “clearly evince” an intent to appeal, as the primary relief

requested was reconsideration and Dudley sought to appeal only in

the alternative. S ee Mosley v. Cozby

, 813 F.2d 659, 660 (5th Cir.

1987). The pleading therefore did not constitute a timely notice

of appeal from the judgment dismissing the complaint with

prejudice, and, consequently, we have jurisdiction only to review

the denial of his F ED

. R. C IV

. P. 60(b) motion, fro m which he did

file a timely notice of appeal, but our review is only for an abuse

of discretion. S ee Lancaster v. Presley

, 35 F.3d 229, 231 (5t h

Cir. 1994).

Dudley’s contention that his proceedings were rendered unfair

because the district court failed to consider his objections prior

to adopting the recommendation of the magistrate judge is frivolous

given that the district court did ultimately review the objections

and deemed them meritless. Also frivolous is his contention that

we lack jurisdiction over this appeal because there was no final

judgment; the district court ad judicated all claims against all

defendants.

Dudley’s conclusional allegations that the defendants

fraudulently misrepresented whether his claims were exhausted are

an insufficient basis on which to grant Rule 60(b)(3) relief. S ee3

Go v’t Fin. Servs. One Ltd. P’ship v. Peyton Place, Inc. , 62 F.3d

767, 772 (5th Cir. 1995). Finally, with respect to Dudley’s

argument that his unexhausted claims w ere erroneously dismissed

with prejudice he has demonstrated no abuse of the district court’s

discretion in denying Rule 60(b) relief in that respect. S ee

Edwards v. City of Houston

, 78 F.3d 983, 995 (5th Cir. 1996) (abuse

of discretion is standard of review of denial of Rule 60(b)

relief).

AFFIRMED.