Benavides v. Pursley

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 12, 1995
• Docket: 94-20771
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 94-20771 Summary Calendar

EDUARDO M. BENAVIDES,

Plaintiff-Appellant,

VERSUS

JACK B. PURSLEY and JAMES (JIM) LYNAUGH,

Defendants-Appellees.

Appeal from the United States District Court For the Southern District of Texas (CA-H-91-1971) (September 25, 1995)

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:1

Eduardo Benavides, a Texas Department of Criminal Justice

inmate proceeding in forma pauperis filed a § 1983 civil rights

complaint. Following a Spears hearing, at which Benavides abandoned all claims except his claim of retaliation resulting from

the confiscation of his personal property including legal

materials, the district court dismissed his claim as frivolous

Local Rule 47.5 provides: “The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession.” Pursuant to that Rule, the Court has determined that this opinion should not be published. under § 1915(d). Benavides moved for reconsideration which was

denied by another judge of the district court to whom the case had

been reassigned. Benavides then moved for reconsideration of the

denial of his reconsideration motion. It was likewise denied by

the second judge. Benavides appeals the denial of his second

motion to reconsider. We affirm.

Appellant’s motion was timely under Rule 60(b). Harcon Barge

Co. v. D&G Boat Rentals, 784 F.2d 665, 667 (5th Cir.) (en banc),

cert. denied, 479 U.S. 930 (1986). We review using the abuse of

discretion standard. Carimi v. Royal Carribean Cruise Line, Inc.,

959 F.2d 1344, 1345 (5th Cir. 1992).

Relying on Federal Rule of Civil Procedures 63, Benavides

argues that the second district judge was without authority to rule

on his motion because it was the first district judge who dismissed

his suit. We disagree. Federal Rule of Civil Procedure 63

concerns only the inability of a judge to continue a trial or

hearing that is in progress. It has nothing to do with the

transfer of cases from the docket of one district judge to another.

Benavides’ property was confiscated but it was returned to him

within thirty days. He made no showing of a permanent deprivation

therefore the district court’s decision to deny Rule 60(b) relief

on this basis was not an abuse of discretion. The dismissal under

1915(d) was therefore also appropriate.

The same is true of Benavides’ contention that the temporary

confiscation of his legal materials interfered with the prosecution

of a malpractice claim he had brought against his attorney and with

2 his habeas petition. Appellant has not shown any specific

prejudice resulting from the confiscation and without such a

showing he is unable to establish that Rule 60(b) relief was

warranted.

Appellant next contends that the district court erred when it

did not specifically address his contention that § 1915(d) is

unconstitutional because it treats indigents differently from non-

indigents. In Neitzke v. Williams, 490 U.S. 319 (1989) the Supreme

Court considered § 1915(d) and noted that it was designed to ensure

that indigent litigants have meaningful access to the federal

courts, and that the judiciary was left with the task of “giving

content to § 1915(d)’s definite objectives.” We find nothing in

this record to support the claim of unconstitutionality. While

indigents may indeed be treated differently than non-indigents, the

indigents are given an advantage in the prosecution of their

claims.

Finally, Benavides argues that the district court erred in not

allowing him to amend his pleadings. The district court did,

however, conduct a Spears hearing to allow him to augment his

pleadings and the failure to permit further amendment thereafter is

no abuse of discretion.

AFFIRMED.