Torres v. County of Webb, et al

United States Court of Appeals
Fifth Circuit
F I L E D
September 27, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-50231
_______________
ANGELINA M. TORRES,
ALSO KNOWN AS ANN DOE,
Plaintiff-Appellant,
VERSUS
COUNTY OF WEBB;
STATE OF TEXAS,
AND UNKNOWN AGENTS IN THEIR OFFICIAL
AND PERSONAL CAPACITIES, JOINTLY AND SEPARATELY;
CITY OF LAREDO,
AND OTHER UNKNOWN AGENTS IN THEIR OFFICIAL
AND PERSONAL CAPACITIES, JOINTLY AND SEPARATELY;
CATHOLIC DIOCESE OF CORPUS CHRISTI,
JOINTLY AND SEPARATELY;
DIOCESE OF LAREDO,
JOINTLY AND SEPARATELY;
CABLE NEWS NETWORK (CNN),
AND ITS AFFILIATES, JOINTLY AND SEPARATELY;
COLUMBIA BROADCASTING SYSTEM (CBS),
AND ITS AFFILIATES, JOINTLY AND SEPARATELY;
NATIONAL BROADCASTING COMPANY (NBC),
AND ITS AFFILIATES, JOINTLY AND SEPARATELY;
TEXAS DEPARTMENT OF AGRICULTURE;
CENTRAL INTELLIGENCE AGENCY,
AND UNKNOWN AGENTS, IN THEIR OFFICIAL
AND PERSONAL CAPACITIES, JOINTLY AND SEPARATELY,
Defendants-Appellees.

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_________________________
Appeal from the United States District Court
for the Western District of Texas
m A-02-CV-550-SS
______________________________
Before GARWOOD, SMITH, AND DEMOSS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Angelina Torres, a licensed attorney pro-
ceeding pro se, appeals orders (1) dismissing
her numerous claims of federal constitutional
and civil rights violations (pursuant to 42
U.S.C. §§ 1981, 1982, 1983 and 1985, and vi-
olations of the First, Fourth, Fifth, Eighth,
Thirteen, and Fourteen Amendments) and fed-
eral and state tort law violations; (2) denying
her motion for reconsideration, motion to va-
cate judgment, and motion for a new trial; and
(3) denying her a temporary restraining order,
preliminary injunction, permanent injunction,
and motion for protective order. We affirm.
I.
Torres sued the State of Texas, Webb
County, the City of Laredo, the Catholic Dio-
cese of Laredo, the CIA, CBS, CNN, NBC,1
and their unknown agents, alleging, inter alia,
invisible and unidentified voices in her home
that invaded her privacy; electric shocks and
macing at the county courthouse and elsewhere
that interfered with her constitutional rights of
travel, free expression of religion, and free
speech; and transmission of altered national and
local news programming directed solely at her
that slandered her;2 and tarring and feathering by
unknown individuals inside city hall. Torres also
contends that defendants subjected her to high
frequency noises “created by sound waves aimed
at the Plaintiff’s ears and inflicting upon her ears
sounds of conversations of persons unknown to
the plaintiff which are insulting and offensive and
intended to cause and create extreme emotional
distress, with the use of audio speaker devices
believed to be of a metallic nature whose origi-
nation and location cannot be determined.”
Torres further alleges that the diocese “en-
gaged in concerted anti-abortion activities that
interfered with the Appellant’s right to practice
her Catholic faith and ultimately caused her to
suffer emotional distress by subjecting her to an
assault by a Catholic priest after Mass, which in
turn caused her to be intimidated so as to forego
attending church for fear of further attacks.”
She also avers employment discrimination and
interference with employment rights through
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
1 The suit against NBC was dismissed for inad-
equate service of process.
2 One such alleged comment directed solely at
Torres said “Black, Black” and used other words that
had racial overtones. Another comment, again
transmitted solely to her, was allegedly uttered by
Dan Rather and included a disgusting remark related
to the female anatomy.

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slanderous activities akin to “blacklisting.” Ac-
cording to Torres, these acts were part of a
vast conspiracy between and among the defen-
dants to target her for ridicule and harassment
because she had counseled clients on their
right to abortion.
Because Torres did not delineate the role
that each defendant played in these activities,
the district court, based on her various other
filings, construed the amended complaint to
assert the following causes of action against
each defendant: (1) employment discrimina-
tion, (2) battery, (3) intentional infliction of
emotional distress, (4) slander, (5) invasion of
privacy, (6) violations of §§ 1981 and 1982,
and (7) violations of § 1983 for allegedly vio-
lating, and conspiracy under § 1985(3) to vio-
late, her First, Fourth, Fifth, Thirteen and
Fourteen Amendment rights. Torres’s claims
were dismissed under Federal Rule of Civil
Procedure 12(b)(1) and (6) and on summary
judgment.
II.
A.
Dismissals under rule 12(b) are reviewed de
novo, Fernandez-Montes v. Allied Pilots
Ass'n, 987 F.2d 278, 284 (5th Cir.1993); Low-
rey v. Texas A & M Univ. Sys., 117 F.3d 242,
246 (5th Cir. 1997), and so is the dismissal on
summary judgment, Wallace v. Tex. Tech
Univ., 80 F.3d 1042, 1047 (5th Cir. 1996).
The dismissal of all claims against the federal,
state, local, and CIA unnamed officers or
agents in their personal or official capacity was
proper because these agents were not served
despite Torres’s receipt of an extension of time
beyond the 120-day statutory limit. See FED.
R. CIV. P. 4(m), Jackson v. Widnall, 99 F.3d
710, 712 n.1 (5th 1996) (dismissing suit
against defendants that were not timely
served).3
The district court was also correct in dismiss-
ing all claims other than the Title VII claims
against the state as barred by the Eleventh
Amendment.4 Moreover, summary judgment on
all claims against the diocese was proper because
Torres did not timely file a motion in opposition
to summary judgment, in disregard of not only
the local rules but also an express court order
noting that if Torres failed to respond to the
diocese’s motion within the time mandated by
the local rules, the motion would be granted as
unopposed.
B.
With respect to the federal and state tort
claims for assault and battery, intentional inflic-
tion of emotional distress, slander, and invasion
of privacy, the district court was correct in dis-
missing the claims against the city and county as
barred by the doctrine of state law sovereign
3 At least one court has held that service on the
agency may be sufficient where the identity of the
agents is unknown. See Ecclesiastical Order of the
Ism of Am, Inc., v. Chasin, 653 F. Supp. 1200 (E.D.
Mich. 1986) (arguing that this procedure has been
used by many courts). Torres, however, has failed to
raise this argument on appeal (and apparently in the
district court) and so has waived it. See, e.g., United
States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir.
2000). At the very least, she could have argued that
it was her intention to determine the identity of the
unknown agents through discovery, but she failed to
raise that argument, as well, on appeal. See, e.g., Li
Kin Wah v. Wu Hak Kong, 1986 WL 3784
(S.D.N.Y. March 26, 1986).
4See Seminole Tribe v. Florida, 517 U.S. 44, 54
(1996) (holding that federal courts are without juris-
diction to consider suits against unconsenting states
pursuant to either federal or state law).

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immunity.5 The tort claims against the CIA are
also barred because Torres did not file suit
within six months of the CIA’s denial of her
claims as required by 28 U.S.C. § 2401(b).6
We also affirm the summary judgment on the
tort claims against CNN and CBS because
they are entirely without merit.7
C.
Torres’s constitutional and civil rights claims
against the CIA are barred by federal sovereign
immunity. Affiliated Professional Home Health
Care Agency v. Shalala, 164 F.3d 282, 286 (5th
Cir. 1999). To make a claim under §§ 1981 and
1982 against the remaining defendants, Torres
must allege that defendants’ interference with
her ability to get a job and to contract and re-
spectively with her right to purchase, sell, hold,
or convey property was racially motivated.8
Torres only alleged that the interference was a
result of her advocacy of unpopular pro-choice
beliefs. Because she never alleged racial moti-
vation, the claims under §§ 1981 and 1982 were
correctly dismissed.
Torres’s claims under §1985(3) similarly fail
because she did not allege that racial or other
invidious class-based animus motivated the al-
leged conspiracy to violate her constitutional
rights. Although Torres did allege that the con-
spiracy was motivated by opposition to her pro-
abortion beliefs, “opposition to abortion” does
5 Travis v. City of Mesquite, 830 S.W.2d 94,
104 (Tex. 1992) (stating that political subdivisions
of the State of Texas are immune from tort liability
absent consent to be sued). The Texas Tort Claims
Act does not waive immunity for the intentional
tort claims asserted by Torres.
6 Torres received the letter of denial from the
CIA on September 10, 2001, and sued on Aug-
ust 28, 2002.
7 With respect to the assault and battery claim,
Torres was unable to meet the “physical contact”
requirement, given her deposition testimony that
she never had physical encounters with anyone
from CBS or CNN. Torres was also unable to
make a claim for intentional infliction of emotional
distress because she conceded that had no physical
encounters with anyone from CNN and CBS,
which contradicts her assertion that the defendants
subjected her to electric shock and torture that
caused her severe emotional distress. Additionally,
as the district court correctly pointed out, the mere
insults that Torres alleges were uttered by persons
at CNN and CBS individuals do not rise to the
level of extreme and outrageous conduct that
Torres must prove to make a claim for intentional
infliction of emotional distress. Thomas v. Clayton
Williams Energy, Inc., 2 S.W. 3d 734, 741 (Tex.
App.SSHouston [14th Dist.] 1999, no pet.).
The claim for slander also fails as a matter of
law because Torres admitted that the alleged slan-
derous statements were not published to a person
other than Torres. See, e.g., Baubles & Bead v.
Louis Vuitton, S.A., 766 S.W. 2d 377, 380 (Tex.
App. 1989). Last, Torres’s claim for invasion of
(continued...)
7(...continued)
privacy fails because she admitted she does not know
to whom the two voices of individuals inside her
home belong. Her unsubstantiated allegations that
they may belong to persons at CNN or CBS are not
competent summary judgment evidence and fail to
raise an issue of material fact as to whether CNN or
CBS intentionally intruded, physically or otherwise,
on her solitude, seclusion, or private affairs or
concerns.
8 See Green v. State Bar of Tex., 27 F.3d 1083,
1086 (5th Cir. 1994) (requiring proof, inter alia, of
intent to discriminate on the basis of race to make
§ 1981 claim); Shaare Tefila Congregation v. Cobb,
481 U.S. 615 (1989) (indicating that only racially-
motivated actions are actionable under § 1982 and
that Jews and Arabs are races that Congress intended
to protect under the statute).

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not constitute the class-based invidious animus
required by that statute.9
The claims against the city and county un-
der §1983 were properly dismissed under rule
12(b)(6) because Torres failed to allege the ex-
istence of a city or county policy that resulted
in the deprivation of her rights. She merely
claimed acts on part of unknown agents of the
county or city, for which the two entities
cannot be found vicariously liable. Monell v.
New York City Dep’t of Social Serv., 436 U.S.
658, 690 (1978). The § 1983 claims against
CNN and CBS were also properly dismissed
on summary judgment because there is nothing
in the record, except Torres’s unsubstantiated
allegations, that either acted in concert with
any state government officials.10
Summary judgment against all defendants
on the title VII claims was also appropriate.
Under title VII, exhaustion of administrative
remedies is a prerequisite for maintaining a
cause of action. Failure to exhaust remedies
results in dismissal on the merits. Dao v. Au-
chan Hypermarket, 96 F.3d 787 (5th Cir.
1996). Torres admitted at the October 24,
2004, hearing that she has never filed a dis-
crimination complaint with the EEOC or the
Texas Commission on Civil Rights. Moreover,
she alleged that the discrimination ended in
2002. Her complaint with the EEOC was filed
after October 2003 and thus was not within the
statutory period, because it was more than 180
days after the alleged discrimination ended.
III.
Torres avers that the district court abused its
discretion by denying her motion for reconsider-
ation, to vacate judgment, and for a new trial.
The motion itself seeks relief only under Federal
Rule of Civil Procedure 59(a) and (e) and ex-
pressly disclaims any relief under Federal Rule of
Civil Procedure 60.
The denial of a rule 59(a) motion for new trial
is reviewed for abuse of discretion and is ordi-
narily not appealable unless new matters arise
after entry of judgment. Youmans v. Simon, 791
F.2d 341, 349 (5th Cir.1986). Torres fails to
specify in her appellate brief what the new
matters are. In her motion for new trial, she
asserts that she found new evidence of employ-
ment applications and other documentary evi-
dence supporting her claim of employment
discrimination. Even if this were true, this evi-
dence is immaterial, because it does not pertain
to or negate the determination that Torres’s
claim is time-barred for failure to exhaust her
administrative remedies within the statutorily-
mandated time frame.
The denial of a rule 59(e) motion to alter or
amend the judgment is appealable and is re-
viewed for abuse of discretion. Id. Torres con-
tends the district court committed a manifest er-
ror of law when it cited Tolbert v. United States,
916 F.2d 245 (5th Cir. 1990), which held that a
failure to exhaust administrative remedies de-
prives the court of subject matter jurisdiction.
We note that this argument is relevant only to
Torres’s employment discrimination claims.
Even for those claims, although Zipes v. Trans
9 See Bray v. Alexandria Women’s Health
Clinic, 506 U.S. 263, 269 (1993) (“Respondents
assert that there qualifies alongside race discrimi-
nation, as an ‘otherwise class-based, invidiously
discriminatory animus’ covered by the 1871 law,
opposition to abortion. Neither common sense nor
our precedents support this.”). Bray held that the
class discriminated against under § 1985(3) “can-
not be defined simply as the group of victims of the
tortious action.” Id..
10 See Wallace, 80 F.3d at 1047 (stating that
“unsubstantiated assertions” will not satisfy the
non-movant’s burden).

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World Airlines, Inc., 455 U.S. 385, 393
(1982), holds that failure to exhaust remedies
is not a jurisdictional bar, Torres loses because
failure to exhaust administrative remedies is
nonetheless a prerequisite to maintaining suit
under both Zipes and the statute.
IV.
A.
The denial of a temporary restraining order
or preliminary injunction is reviewed for abuse
of discretion.11 Torres contends the district
court erred in denying her preliminary equita-
ble relief because the court considered only
one of the four prerequisites of a claim for in-
junctive relief, namely Torres’s likelihood of
success on the merits. Torres’s novel claim is
at best frivolous.12
Torres further cites EEOC v. Cosmair, Inc.,
821 F.2d 1085, 1090 (5th Cir. 1987), for the
proposition that “[w]hen a statute authorizes
injunctive relief, the express statutory language
may eliminate some equitable factors required
for obtaining injunctive relief.” The opinion,
however, does not contain the sentence Torres
quotes. The closest language to that “quoted”
by Torres is “[w]hen an injunction is expressly
authorized by statute and the statutory condi-
tions are satisfied, the movant need not estab-
lish specific irreparable injury to obtain a
preliminary injunction.” Cosmair, 821 F.2d at
1090.
Cosmair only holds that one specific prereq-
uisite for granting preliminary injunctive relief,
namely “irreparable injury,” may be presumed
from the very fact that the statute has been vio-
lated. Id. It does not support in any way the
proposition that any other of the four prerequi-
sites for preliminary injunctive relief (e.g. sub-
stantial likelihood of success on the merits)
could be eliminated. Even assuming, arguendo,
that Cosmair had included the cited language,
Torres waived this argument by failing to point
to any “express statutory language” in the stat-
utes at issue in this case (or caselaw discussing
such language) authorizing the elimination of the
requirement that a plaintiff establish substantial
likelihood of success on the merits.13
Torres also claims the district court errone-
ously concluded that there was no substantial
likelihood of success on the merits because there
“were facts to the contrary.” But the only facts
she cites in her appellate brief in support of her
entitlement to injunctive relief are facts related to
her alleged injury. Yet Torres’s losses, even if
real, are not legally remediable injuries in light of
defendants’ Eleventh Amendment defense,
Torres’s failure to exhaust remedies, failure to
serve some defendants, and her own admissions
with respect to other defendants. Therefore,
absent more, Torres’s injuries are insufficient to
establish a likelihood of success on the merits.
B.
Torres asserts that the district court erred in
denying her a permanent injunction. She does
not brief legal authority or pertinent facts ex-
plaining why she would be entitled to a per-
11 S. Monorail Co. v. Robbins & Myers, Inc.,
666 F.2d 185, 186 (5th Cir. 1982); Plains Cotton
Coop. Ass'n v. Goodpasture Computer Serv., Inc.,
807 F.2d 1256, 1259 (5th Cir.1987).
12 See, e.g., Plains Cotton Coop., 807 F.2d at
1259 (“A preliminary injunction may not issue un-
less the movant carries the burden of persuasion as
to all four prerequisites”); Vision Ctr. v. Opticks,
Inc., 596 F.2d 111, 114 (5th Cir. 1979) (same).
13 Cf. L&A Contracting Co. v. S. Concrete Servs.,
17 F.3d 106, 113 (5th Cir. 1994) (finding waiver of
argument on appeal for failure to cite authority).

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manent, as opposed to a temporary, injunction,14
so she has waived this argument. Cf. L&A
Contracting, 17 F.3d at 113.
C.
Lastly, Torres claims the district court
abused its discretion in denying her motions
for protective orders because she “had given
sufficient documentary testimony as to facts
supporting the allegations of attacks on her
professional work and reputation and violence
committed against her by the appellees, partic-
ularly when she was on the premises of Webb
County, Law Offices of Vinson & Elkins, and
other defendants-appellees.” Torres fails to
explain what these orders were supposed to
protect or what her legal basis for entitlement
to each of these protective orders was.
Torres’s only description of the protective
orders is found in the facts section of the brief,
where we learn that the district court denied a
motion for protective order on March 4, 2003,
and that a “second motion for a protective or-
der was denied since plaintiff Appellant was
not able to provide a doctor’s affidavit as to
her infirmities and injuries incurred by her
while she was being deposed at the law office
of the Appellees.” Given the paucity of infor-
mation provided by Torres on appeal, and
even construing her statements as liberally as
possible, we are at a loss in trying to under-
stand her legal and factual theory as to how
the district court erred in denying the protec-
tive orders.15
AFFIRMED.
14 Torres also fails to state the standard of re-
view for a denial of a permanent injunction; she
cites only the standard for a preliminary injunction.
15 Apparently, the second motion for a protec-
tive order was actually a motion to strike Torres’s
deposition of September 18, 2003. At the October
(continued...)
15(...continued)
24, 2003, conference, Torres described to the district
court her need for a protective order as follows:
This motion was filed because at the deposition of
September the 18th, I was sitting there and was
being deposed, and some kind of device started
heating up, something in my head . . . . Some of
the things they said in there were not, you know,
competent, because I was thinking about it later
and it must have disturbed my thinking that whole
heating device and that pain I was feeling in the
head.
It appears that other claims for striking the testi-
mony were that the testimony was not competent
because Torres was unable to obtain counsel to rep-
resent her and that the testimony included “irrelevant,
immaterial and privileged matters and should be
excluded from evidence.” Even with this additional
information, which we normally would not need to
consider given Torres’s failure to brief the issue in
any cogent manner, we do not see any abuse of
discretion in the court’s decision to request a doctor’s
affidavit to confirm that her testimony at the deposi-
tion was not competent.

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