Taylor Walker v. Skalka

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 11, 2021
• Docket: 20-20216
• Status: Unpublished

Opinion

Case: 20-20216 Document: 00515858080 Page: 1 Date Filed: 05/11/2021

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED May 11, 2021 No. 20-20216 Lyle W. Cayce Summary Calendar Clerk

Marilyn J. Taylor Walker,

Plaintiff—Appellant,

versus

Ben Skalka, Fraud Investigator; Carla Venzor, Hearing Officer; The Houston Housing Authority,

Defendants—Appellees.

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:19-CV-2736

Before Wiener, Southwick, and Duncan, Circuit Judges. Per Curiam:* Marilyn J. Taylor Walker, proceeding pro se, appeals the district court’s denial of her motions for default judgment and its dismissal of her civil rights complaint. With the benefit of liberal construction, she argues

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 20-20216 Document: 00515858080 Page: 2 Date Filed: 05/11/2021

No. 20-20216

that she was entitled to default judgment because she was not properly served with the motion to dismiss filed on behalf of The Houston Housing Authority and its employees Ben Skalka and Carla Venzor (collectively, the defendants). We review the district court’s denial of a motion for default judgment for abuse of discretion. Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001). Generally, a plaintiff may seek default judgment when a defendant fails to defend against a complaint. See Fed. R. Civ. P. 55. The defendants in this case timely filed and served their motion to dismiss on Taylor Walker via certified mail to her last known address. See Fed. R. Civ. P. 5(a)(1)(D); Fed. R. Civ. P. 5(b)(2)(C). Although Taylor Walker contends she did not ultimately receive the mailing, service was complete as of the mailing date. See Fed. R Civ. P. 5(b)(2)(C). In arguing that she was not properly served, Taylor Walker relies entirely on Texas state rules and state case law, which are inapposite. Because the defendants did not default, the district court did not abuse its discretion in denying Taylor Walker’s motions for default judgment. See Fed. R. Civ. P. 55. Taylor Walker has abandoned, by failing to brief, any challenge to the district court’s dismissal of her complaint for failure to state a claim and to its award of costs to the defendants. See Yohey v. Collins, 985 F.2d 222, 224- 25 (5th Cir. 1993). To the extent that she seeks to raise any new claims for the first time on appeal, we decline to consider them. See id. at 225. The district court’s judgment is AFFIRMED.