Smith v. Texas Department of Criminal Justice

Fifth Circuit

Smith v. Texas Department of Criminal Justice

79 F. App'x 61

CourtCourt of Appeals for the Fifth Circuit

DecidedOctober 21, 2003

Docket03-10426

StatusUnpublished

This text of 79 F. App'x 61 (Smith v. Texas Department of Criminal Justice) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Smith v. Texas Department of Criminal Justice, 79 F. App'x 61 (5th Cir. 2003).

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Opinion

PER CURIAM. *

Travis Mark Smith, Texas inmate # 684080, appeals the denial of a motion to reopen his civil rights complaint filed pursuant to 42 U.S.C. § 1983. Smith’s motion is construed as arising under Fed. R. Civ. P. 60(b). See Halicki v. Louisiana Casino Cruises, Inc., 151 F.3d 465, 470 (5th Cir. 1998). The denial of a Rule 60(b) motion does not bring up the underlying judgment for review and is not a substitute for appeal. See Matter of Ta Chi Navigation (Panama) Corp. S.A., 728 F.2d 699, 703 (5th Cir.1984). We review the denial of a Fed. R. Civ. p. 60(b) motion for an abuse of discretion. Travelers Ins. Co. v. Liljeberg Enter., 38 F.3d 1404, 1408 (5th Cir.1994).

“Rule 41(b), [Fed. R. Civ. P.], authorizes a district court to dismiss with prejudice an action for want of prosecution by the plaintiff.” Dorsey v. Scott Wetzel Serv., 84 F.3d 170, 171 (5th Cir.1996). Rule 41(b) dismissals are affirmed “only upon a showing of a clear record of delay or contumacious conduct by the plaintiff, ... and where lesser sanctions would not serve the best interest of justice.” Id.

The record shows and Smith concedes that he received the district court’s initial *63 order to file an amended complaint. Smith did not comply with the order. He now argues that compliance was impossible and was not warranted because he did not receive the district court’s second order and notice of the dismissal, he had filed his initial complaint on the proper form, and compliance with the district court’s initial order would have been impossible. The record shows that Smith demonstrated the ability to file pleadings and contact the court.

The case file shows a clear record of delay and contumacious conduct on the part of Smith in failing to comply with the district court’s orders. Dorsey, 84 F.3d at 171. Smith has not shown that the district court’s denial of his motion to reopen was an abuse of discretion. Travelers Ins. Co., 38 F.3d at 1408. Accordingly, the judgment is AFFIRMED.

*

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.

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PER CURIAM. *

Travis Mark Smith, Texas inmate # 684080, appeals the denial of a motion to reopen his civil rights complaint filed pursuant to 42 U.S.C. § 1983. Smith’s motion is construed as arising under Fed. R. Civ. P. 60(b). See Halicki v. Louisiana Casino Cruises, Inc., 151 F.3d 465, 470 (5th Cir. 1998). The denial of a Rule 60(b) motion does not bring up the underlying judgment for review and is not a substitute for appeal. See Matter of Ta Chi Navigation (Panama) Corp. S.A., 728 F.2d 699, 703 (5th Cir.1984). We review the denial of a Fed. R. Civ. p. 60(b) motion for an abuse of discretion. Travelers Ins. Co. v. Liljeberg Enter., 38 F.3d 1404, 1408 (5th Cir.1994).

“Rule 41(b), [Fed. R. Civ. P.], authorizes a district court to dismiss with prejudice an action for want of prosecution by the plaintiff.” Dorsey v. Scott Wetzel Serv., 84 F.3d 170, 171 (5th Cir.1996). Rule 41(b) dismissals are affirmed “only upon a showing of a clear record of delay or contumacious conduct by the plaintiff, ... and where lesser sanctions would not serve the best interest of justice.” Id.

The record shows and Smith concedes that he received the district court’s initial *63 order to file an amended complaint. Smith did not comply with the order. He now argues that compliance was impossible and was not warranted because he did not receive the district court’s second order and notice of the dismissal, he had filed his initial complaint on the proper form, and compliance with the district court’s initial order would have been impossible. The record shows that Smith demonstrated the ability to file pleadings and contact the court.

The case file shows a clear record of delay and contumacious conduct on the part of Smith in failing to comply with the district court’s orders. Dorsey, 84 F.3d at 171. Smith has not shown that the district court’s denial of his motion to reopen was an abuse of discretion. Travelers Ins. Co., 38 F.3d at 1408. Accordingly, the judgment is AFFIRMED.

*

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.

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79 F. App'x 61, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-texas-department-of-criminal-justice-ca5-2003.

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