Scott v. Smith

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 1, 2000
• Docket: 99-60663
• Status: Unpublished

Opinion

No. 99-60663 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-60663 Summary Calendar

AMARRIUS SCOTT, a minor by and through his mother and next friend, Jimmie Scott,

Plaintiff-Appellant,

versus

ELVIN SMITH, individually and in his official capacity; CARDEL WILLIAMS, in his official capacity as Superintendent of the Claiborne County Schools; CLAIBORNE COUNTY SCHOOL BOARD,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 5:97-CV-100-BrS -------------------- April 27, 2000

Before JONES, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Amarrius Scott appeals the district court’s dismissal of his

federal due process claims and the dismissal of his state law

claims without prejudice. Scott’s argument that he has a due

process claim for excess corporal punishment is controlled by our

decision in Fee v. Herndon, 900 F.2d 804, 808-09 (5th Cir. 1990).

We agree with the district court that Mississippi provides

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-60663 -2-

adequate state law remedies such that neither substantive nor

procedural due process rights are implicated. See id.; see also

Coleman v. Franklin Parish Sch. Bd., 702 F.2d 74, 76 (5th Cir.

1983). Our decision in Doe v. Dallas Independent Sch. Dist., 153

F.3d 211 (5th Cir. 1998), on which Scott relies, is inapposite.

Doe did not deal with corporal punishment and due process rights,

but with allegations of sexual molestation under § 1983 and Title

IX. Further, we would be bound by Fee regardless of Doe’s

holding absent an intervening en banc or Supreme Court decision.

See Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir.

1991).

We also reject Scott’s claim that the district court abused

its discretion by dismissing his claims without prejudice rather

than remanding them. Scott argues that he will be forced to

incur additional costs for refiling and will have to have the

defendants served anew. He also contends that the statute of

limitations will be affected by a dismissal.

Although Scott moved the district court to remand rather

than dismiss his state law claims, he failed to articulate in the

district court the specific reasons that he now asserts on

appeal, nor does he cite to any authority on appeal in support of

his position. Thus, we may decline to address this issue. See

Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.

1999) (court will not entertain theory raised for first time on

appeal), cert. denied, -- U.S. –-, 120 S.Ct. 982 (2000); Cinel v.

Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (failure to brief an

issue adequately on appeal results in abandonment of that issue). No. 99-60663 -3-

Moreover, Scott has failed to demonstrate that the district court

abused its wide discretion in dismissing the claims without

prejudice rather than remanding them. See Carnegie-Mellon Univ.

v. Cohill, 484 U.S. 343, 351-53 (1988). In addition, Scott’s

concern regarding the statute of limitations is unfounded. See

28 U.S.C. § 1367(d) (providing for tolling of state statute of

limitations during pendency of federal action); Norman v.

Bucklew, 684 So. 2d 1246, 1256 (Miss. 1996) (holding that statute

of limitations is tolled when state claims are brought with

federal claims and that dismissal without prejudice does not

affect tolling).

For the foregoing reasons, we AFFIRM the judgment of the

district court.

AFFIRMED.