Woods v. TDC Medical

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 96-40007 Summary Calendar __________________

JAMES EDWARD WOODS,

Plaintiff-Appellant,

versus

TDC MEDICAL DEPARTMENT,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:95-CV-136 - - - - - - - - - - April 17, 1996

Before KING, HIGGINBOTHAM, and STEWART, Circuit Judges.

PER CURIAM:*

This is an appeal from the magistrate judge's denial of

Woods' postjudgment motion for reconsideration, brought pursuant

to Fed. R. Civ. P. 60(b), of the magistrate judge's dismissal

without prejudice of Woods' civil rights complaint for failure to

prosecute. Woods contends that, because he did not receive the

magistrate judge's order informing him that he had failed to

exhaust his administrative remedies, the magistrate judge abused

her discretion by denying his motion. Assuming that Woods'

Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.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. 96-40007 -2-

assertion is true, in his Rule 60(b) motion Woods still failed to

comply with the magistrate judge's order that he show that he had

exhausted his administrative remedies. As Woods apparently has

failed to exhaust his administrative remedies, or at least has

failed to show the magistrate judge that he has exhausted those

remedies, the magistrate judge did not abuse her discretion by

denying Woods' Rule 60(b) motion. See Aucoin v. K-Mart Apparel

Fashion Corp., 943 F.2d 6, 8-9 (5th Cir. 1991).

AFFIRMED.