Chavez-Dominguez v. San Antonio Police

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 28, 2002
• Docket: 02-50166
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50166 Summary Calendar

JOSE OSCAR CHAVEZ-DOMINGUEZ, also known as Jose Antonio Chavez,

Plaintiff-Appellant,

versus

SAN ANTONIO POLICE DEPARTMENT; MARTI LAURENZ; AL A. PHILIPPUS,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. SA-00-CV-629 - - - - - - - - - - October 24, 2002

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Jose Oscar Chavez-Dominguez (Chavez) appeals the district

court’s dismissal of his 42 U.S.C. § 1983 action for failure to

prosecute. See FED. R. CIV. P. 41(b). Although Chavez did not

file any pleading entitled “notice of appeal,” he did file within

the appeal period a pleading which evinced an intent to appeal

and which identified Chavez as the party appealing as well as the

judgment he sought to appeal. See FED. R. APP. P. 3(c)(1)(A)&(B);

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-50166 -2-

Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). Because the

pleading did not identify the court to which the appeal was being

taken, this court’s jurisdiction over this appeal is uncertain.

See FED. R. APP. P. 3(c)(1)(C); cf., Smith v. Barry, 502 U.S. 244,

248 (1992); McLemore v. Landry, 898 F.2d 996, 999 (5th Cir.

1990). A determination on this point is unnecessary, however, as

the district court’s dismissal for failure to prosecute was not

an abuse of discretion. See McNeal v. Papasan, 842 F.2d 787,

789-90 (5th Cir. 1988); United States v. Alvarez, 210 F.3d 309,

310 (5th Cir. 2000). Chavez has been deported to El Salvador

and, despite an order from the district court, failed to appear

for the docket call and failed to offer any explanation of how he

intends to pursue this action from another country. This appeal

is therefore frivolous. See 5TH CIR. R. 42.2.

APPEAL DISMISSED.