* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

August 31, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-20315

Summary Calendar

MARIANITO T. BITARA, individually and on behalf of all

persons similarly situated,

Plaintiff-Appellant,

versus

STATE OF TEXAS,

Defendant-Appellee.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:04-CV-3620

--------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Marianito T. Bitara appeals from the

district court’s denial of relief pursuant to FED. R. CIV. P. 60(b)

following the district court’s dismissal of his complaint for

failure to state a claim. Bitara has also filed a motion to strike

the State’s appellate brief or its motion for an extension of time

to file that brief. Bitara’s motion is denied.

We find no abuse of discretion in the district court’s denial

of Bitara’s Rule 60(b) motion. See Matter of Ta Chi Navigation
2

(Panama) Corp. S.A., 728 F.2d 699, 703 (5th Cir. 1984). First, the

State of Texas is immune from Bitara’s suit under the Eleventh

Amendment, see Cronen v. Texas Dep’t of Human Servs., 977 F.2d 934,

937 (5th Cir. 1992); also, 42 U.S.C. § 2000d-7(a)(1) does not

affect the State’s Eleventh Amendment immunity in Bitara’s case.

Second, as Bitara does not indicate how an amendment to his

complaint could have overcome the State’s immunity from suit, the

district court did not abuse its discretion by not allowing an

amendment. See Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597

(5th Cir. 1981). Third, the district court was not required to

take judicial notice of Bitara’s legal arguments, see FED. R. EVID.

201(a); neither was it required to issue findings of fact or

conclusions of law. See FED. R. CIV. P. 52(a). Fourth, Bitara has

failed to show that the admission of the Assistant Attorney General

pro hac vice in the district court rendered the State’s motion to

dismiss Bitara’s complaint for failure to state a claim fraudulent

or invalid.

We do not consider Bitara’s contention that the State’s

alleged failure to address some of his asserted issues on appeal

constitutes a judicially binding admission entitling him to relief.

As that contention is raised for the first time in Bitara’s reply

brief, we are not required to address it. See Wallace v. County of

Comal, 400 F.3d 284, 292 (5th Cir. 2005). 

Finally, Bitara accuses the district court of committing fraud

on the court, argues that we should institute disciplinary
3

proceedings against the district court, and suggests that we are

committing fraud as well. Baseless allegations against the

judiciary will not be tolerated. See Theriault v. Silber, 579 F.2d

302, 303 (5th Cir. 1978). Bitara is warned that future baseless

allegations of misconduct or future pursuit of frivolous litigation

may invite the imposition of sanctions.

APPEAL DISMISSED. See 5TH CIR. R. 42.2. MOTION TO STRIKE

DENIED. SANCTION WARNING IMPOSED.