McDowell v. Aguirre ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50171
Summary Calendar
BILLY RAY MCDOWELL, JR.,
Petitioner-Appellant,
versus
JOE AGUIRRE, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-96-CV-481
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August 10, 1998
Before JONES, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
Billy Ray McDowell, Jr., federal prisoner # 05317-069,
appeals from the district court’s dismissal without prejudice of
his Bivens** complaint, construed as a petition for a writ of
habeas corpus under 28 U.S.C. § 2241, for failure to obey an
order of the court. McDowell has filed a motion for leave to
appeal in forma pauperis (IFP) on appeal and for injunctive
*
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that this opinion should not be published and is not precedent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.
**
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971).
No. 97-50171
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relief. McDowell’s motion for leave to proceed on appeal IFP is
GRANTED. See Fed. R. App. P. 24(a).
Because McDowell does not challenge the fact or duration of
his confinement, but, rather, challenges the conditions of his
confinement, his petition should be construed as a federal
prisoner’s civil rights complaint under Bivens. See Cook v.
Texas Dep’t of Criminal Justice Transitional Planning Dep’t, 37
F.3d 166, 168 (5th Cir. 1994).
A district court may sua sponte dismiss an action for
failure to prosecute or to comply with any court order. Fed. R.
Civ. P. 41(b); McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th
Cir. 1988). A sua sponte dismissal by the district court is
reviewed for abuse of discretion. McCullough, 835 F.2d at 1127.
McDowell’s December 24, 1996, motion, filed within ten days
of the district court’s December 18, 1996, order to amend, was in
substantial compliance with the court’s order. See Haines v.
Kerner, 404 U.S. 519, 520 (1972) (pro se pleadings are entitled
to a liberal construction). Because McDowell’s petition should
have been construed as a civil rights complaint, the district
court’s dismissal for failure to name the proper respondent was
improper. The district court abused its discretion in dismissing
McDowell’s complaint for failure to prosecute.
The district court’s judgment is VACATED and the case is
REMANDED for further proceedings. McDowell’s motion for
injunctive relief is DENIED.
MOTION FOR IFP GRANTED; MOTION FOR INJUNCTIVE RELIEF DENIED;
VACATED AND REMANDED.