IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20080 Summary Calendar

EDMUND B. HEIMLICH,

Plaintiff-Appellant,

versus

JOHNNY HOLMES, Individually, and as District Attorney for Harris County; CHARLES ROSENTHAL, Individually, and as Assistant District Attorney for Harris County, Texas; MILTON OJEMAN, HARRIS COUNTY, TEXAS, c/o Harris County District Attorney; the STATE OF TEXAS, c/o Secretary of State; RICARDO MOLINA, Individually, and as Assistant District Attorney for Harris County, Texas,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CV-866 -------------------- October 17, 2001

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

Edmund B. Heimlich is appealing the district court’s order

granting the defendants’ motion for summary judgment and

dismissing his civil rights complaint based on res judicata.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-20080 -2-

The State of Texas argues that Heimlich failed to state in

his notice of appeal that he was appealing the district court’s

order granting the State’s motion to dismiss and, thus, this

court has no jurisdiction to review that order.

Heimlich’s notice of appeal indicated that he was appealing

from the order granting the defendants’ motion for summary

judgment, which was entered subsequent to the order granting the

State’s motion to dismiss. It did not reference the separate

order dismissing the State of Texas. Further, Heimlich makes no

other statements that indicate that he intends to appeal the

order granting the State’s motion. Thus, this court lacks

jurisdiction to address the district court’s dismissal of the

State of Texas from the proceeding. See Fed. R. App. P.

3(c)(1)(B); Ingraham v. United States,

(5th

Cir. 1987).

Heimlich argues that the district court abused its

discretion in allowing the defendants to raise a res judicata

offense in an amended answer. The district court did not abuse

its discretion in granting the defendants’ motion to amend their

answer to raise the defense of res judicata. Heimlich was

allowed to respond to the defense, and the interest of justice

was served by allowing the parties to assert that they had

previously successfully defended against the same claims. See

Simi Inv. Co. Inc. v. Harris County, Tex.,

, 252 n.16

(5th Cir. 2000).

Heimlich further argues that the district court erred in

granting the defendants’ motion for summary judgment and No. 01-20080 -3-

dismissing his civil rights complaints based on res judicata.

Heimlich argues that the judgment in his prior civil rights

action is void because the district court did not have

jurisdiction to address the immunity defenses of the defendants

in that case. He further argues that his instant complaint

involves a different cause of action than his prior complaint

because it alleges the new fact that his state criminal

conviction has been reversed by the state appellate court, an

event that occurred after the dismissal of his prior complaint.

Heimlich has not shown that the district court erred in

determining that his instant complaint is barred by the doctrine

of res judicata. “Res judicata is appropriate if: 1) the parties

to both actions are identical (or at least in privity); 2) the

judgment in the first action is rendered by a court of competent

jurisdiction; 3) the first action concluded with a final judgment

on the merits; and 4) the same claim or cause of action is

involved in both suits.” Ellis v. Amex Life Ins. Co.,

(5th Cir. 2000).

Heimlich does not dispute that both his prior and instant

civil rights complaints alleged violations of his constitutional

rights in connection with his prosecution for theft by the Harris

County District Attorney’s Office. He has not demonstrated that

the mere reversal of his criminal conviction gave rise to a new

legal cause of action nor has he shown that the reversal had any

significant effect on the district court’s determination in his

prior suit that the defendants were immune from liability. See

Wilson v. Lynaugh,

(5th Cir. 1989). No. 01-20080 -4-

Heimlich has not challenged on appeal the district court’s

determination that the claims against all of the defendants named

in the instant case, including those who were not named in his

prior complaint, are barred by res judicata. Thus, he has

abandoned any such claim on appeal. See Yohey v. Collins,

(5th Cir. 1993).

Heimlich’s remaining claims are new claims and arguments

that he failed to make in the district court. Arguments made for

the first time on appeal are subject to review for plain error.

See United States v. Calverley,

(5th Cir.

1994)(en banc).

Heimlich’s new claims or arguments are additional

challenges to the district court’s determination that Heimlich’s

claims against the defendants were resolved by his prior civil

rights litigation. Because Heimlich’s new arguments are all

frivolous, he has not shown that the district court plainly erred

in dismissing his complaint based on res judicata.

AFFIRMED.