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Scott v. Smith ( 2000 )


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  •                             No. 99-60663
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60663
Summary Calendar
AMARRIUS SCOTT, a minor by and through his mother and next
friend, Jimmie Scott,
Plaintiff-Appellant,
versus
ELVIN SMITH, individually and in his official capacity; CARDEL
WILLIAMS, in his official capacity as Superintendent of the
Claiborne County Schools; CLAIBORNE COUNTY SCHOOL BOARD,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:97-CV-100-BrS
--------------------
April 27, 2000
Before JONES, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Amarrius Scott appeals the district court’s dismissal of his
federal due process claims and the dismissal of his state law
claims without prejudice.   Scott’s argument that he has a due
process claim for excess corporal punishment is controlled by our
decision in Fee v. Herndon,
    900 F.2d 804
    , 808-09 (5th Cir. 1990).
We agree with the district court that Mississippi provides
*
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that this opinion should not be published and is not precedent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.
No. 99-60663
-2-
adequate state law remedies such that neither substantive nor
procedural due process rights are implicated.   See id.; see also
Coleman v. Franklin Parish Sch. Bd.,
    702 F.2d 74
    , 76 (5th Cir.
1983).   Our decision in Doe v. Dallas Independent Sch. Dist.,
    153 F.3d 211 
    (5th Cir. 1998), on which Scott relies, is inapposite.
Doe did not deal with corporal punishment and due process rights,
but with allegations of sexual molestation under § 1983 and Title
IX.   Further, we would be bound by Fee regardless of Doe’s
holding absent an intervening en banc or Supreme Court decision.
See Pruitt v. Levi Strauss & Co.,
    932 F.2d 458
    , 465 (5th Cir.
1991).
We also reject Scott’s claim that the district court abused
its discretion by dismissing his claims without prejudice rather
than remanding them.   Scott argues that he will be forced to
incur additional costs for refiling and will have to have the
defendants served anew.   He also contends that the statute of
limitations will be affected by a dismissal.
Although Scott moved the district court to remand rather
than dismiss his state law claims, he failed to articulate in the
district court the specific reasons that he now asserts on
appeal, nor does he cite to any authority on appeal in support of
his position.   Thus, we may decline to address this issue.     See
Leverette v. Louisville Ladder Co.,
    183 F.3d 339
    , 342 (5th Cir.
1999) (court will not entertain theory raised for first time on
appeal), cert. denied, -- U.S. –-,
    120 S. Ct. 982 
    (2000); Cinel v.
Connick,
    15 F.3d 1338
    , 1345 (5th Cir. 1994) (failure to brief an
issue adequately on appeal results in abandonment of that issue).
No. 99-60663
-3-
Moreover, Scott has failed to demonstrate that the district court
abused its wide discretion in dismissing the claims without
prejudice rather than remanding them.     See Carnegie-Mellon Univ.
v. Cohill,
    484 U.S. 343
    , 351-53 (1988).    In addition, Scott’s
concern regarding the statute of limitations is unfounded.     See
28 U.S.C. § 1367(d) (providing for tolling of state statute of
limitations during pendency of federal action); Norman v.
Bucklew,
    684 So. 2d 1246
    , 1256 (Miss. 1996) (holding that statute
of limitations is tolled when state claims are brought with
federal claims and that dismissal without prejudice does not
affect tolling).
For the foregoing reasons, we AFFIRM the judgment of the
district court.
AFFIRMED.