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 2003-10

Smith v. Texas Department of Criminal Justice ( 2003 )


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  •                                                        United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                 October 22, 2003
Charles R. Fulbruge III
Clerk
No. 03-10426
Conference Calendar
TRAVIS MARK SMITH,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL
DIVISION; TEXAS DEPARTMENT OF CRIMINAL JUSTICE; TEXAS
DEPARTMENT OF CRIMINAL JUSTICE BOARD OF PARDONS AND PAROLES;
TEXAS DEPARTMENT OF CRIMINAL JUSTICE INTERNAL AFFAIRS
DIVISION; WAYNE SCOTT; GARY JOHNSON; LEON GUINN; JAMES DUKE;
MARGO GREEN; JAMES MOSSBARGER; ROBERT EASON; CARY COOK;
EMILY BOND; UPHENDRA KATTRAGADDA; GREGORY OLIVER; RONALD
GLOYD; RONALD HAMM; HENRY PENPEK; STATE CLASSIFICATION
COMMITTEE BUREAU OF RECORDS AND CLASSIFICATION; EDWARD
ADAMS; JENNIFER COZBY; STANLEY WILSON; EDWARD RILEY,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:01-CV-206
--------------------
Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Travis Mark Smith, Texas inmate #684080, appeals the denial
of a motion to reopen his civil rights complaint filed pursuant
to
    42 U.S.C. § 1983
    .   Smith’s motion is construed as arising
*
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that this opinion should not be published and is not precedent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. 03-10426
-2-
under FED. R. CIV. P. 60(b).   See Halicki v. Louisiana Casino
Cruises, Inc.,
    151 F.3d 465
    , 470 (5th Cir. 1998).    The denial of
a Rule 60(b) motion does not bring up the underlying judgment for
review and is not a substitute for appeal.    See Matter of Ta Chi
Navigation (Panama) Corp. S.A.,
    728 F.2d 699
    , 703 (5th Cir.
1984).   We review the denial of a FED. R. CIV. P. 60(b) motion for
an abuse of discretion.    Travelers Ins. Co. v. Liljeberg Enter.,
    38 F.3d 1404
    , 1408 (5th Cir. 1994).
“Rule 41(b), [FED. R. CIV. P.], authorizes a district court
to dismiss with prejudice an action for want of prosecution by
the plaintiff.”    Dorsey v. Scott Wetzel Serv.,
    84 F.3d 170
    , 171
(5th Cir. 1996).    Rule 41(b) dismissals are affirmed “only upon
a showing of a clear record of delay or contumacious conduct by
the plaintiff, . . . and where lesser sanctions would not serve
the best interest of justice.”
    Id.
    The record shows and Smith concedes that he received the
district court’s initial order to file an amended complaint.
Smith did not comply with the order.    He now argues that
compliance was impossible and was not warranted because he did
not receive the district court’s second order and notice of the
dismissal, he had filed his initial complaint on the proper form,
and compliance with the district court’s initial order would have
been impossible.   The record shows that Smith demonstrated the
ability to file pleadings and contact the court.
No. 03-10426
-3-
The case file shows a clear record of delay and contumacious
conduct on the part of Smith in failing to comply with the
district court’s orders.   Dorsey,
    84 F.3d at 171
    .   Smith has not
shown that the district court’s denial of his motion to reopen
was an abuse of discretion.   Travelers Ins. Co.,
    38 F.3d at 1408
    .
Accordingly, the judgment is AFFIRMED.