Wilson v. Moreno

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-20093 Conference Calendar

NATHAN JAMES WILSON,

Plaintiff-Appellant,

versus

M. MORENO; DOUGLAS OSTERBERG; W.E. COX,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. CA-H-95-4605 - - - - - - - - - - June 26, 1996 Before HIGGINBOTHAM, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Nathan James Wilson, Texas prisoner #718250, appeals the

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

want of prosecution. Liberally construed, his brief argues that

the district court abused its discretion in dismissing his action

for want of prosecution. Because Wilson failed to comply with

the district court’s order to file an application for leave to

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No.96-20093 - 2 -

proceed in forma pauperis or to pay the $120 district court

filing fee, and Wilson failed to file any other pleadings either

explaining his failure to comply or requesting additional time,

the district court did not abuse its discretion in dismissing his

action for want of prosecution. See Gonzalez v. Firestone Tire &

Rubber Co., 610 F.2d 241, 247 (5th Cir. 1980).

For the first time on appeal, Wilson argues that prison

officials failed to provide information that he needed to

complete and file an IFP application and thereby interfered with

his right of access to the courts. Because Wilson raises this

claim for the first time on appeal, this court reviews the claim

only for plain error. Douglass v. United Services Automobile

Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). Wilson has not

alleged that he needed to obtain specific information from prison

officials to complete his IFP application. He also failed to

allege that his position as a litigant was prejudiced as a result

of prison officials’ actions, as the district court merely

dismissed his action without prejudice and advised him that upon

the proper showing he could obtain relief from the order of

dismissal in accordance with Fed. R. Civ. P. 60(b). See Walker

v. Navarro County Jail, 4 F.3d 410, 413 (5th Cir. 1993).

Although a dismissal without prejudice may operate as a dismissal

with prejudice if the statute of limitations has expired, see

McCollough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988),

Wilson has not alleged that the statute of limitations has No.96-20093 - 3 -

expired, and the facts alleged do not indicate the date of the

complained of incident. Because Wilson has not shown plain

error, we decline to review his denial-of-access-to-the-courts

claim.

This appeal is without arguable merit and is thus frivolous.

Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because

the appeal is frivolous, it is DISMISSED. We caution Wilson that

any future frivolous appeals filed by him or on his behalf will

invite the imposition of sanctions. To avoid sanctions, Wilson

is cautioned further to review any pending appeals to ensure that

they do not raise arguments that are frivolous because they have

been previously decided by this court.

APPEAL DISMISSED; SANCTION WARNING ISSUED.