Friemel v. Randall County Sheriff ( 2023 )

Case: 23-10861 Document: 00516982594 Page: 1 Date Filed: 11/29/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10861
Summary Calendar FILED
____________ November 29, 2023
Lyle W. Cayce
Bueford James Friemel, Clerk
Plaintiff—Appellant,
versus
Randall County Sheriff,
Defendant—Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:23-CV-95
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Before Davis, Willett, and Oldham, Circuit Judges.
Per Curiam: *
Plaintiff-Appellant, Bueford James Friemel, proceeding pro se, appeals
the district court’s judgment dismissing without prejudice his complaint for
failure to comply with a court order to amend his complaint. We AFFIRM.
Plaintiff filed a complaint against “Randall County Sheriffs” for civil
rights violations and defamation. He alleged that on June 11, 2022, Randall
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-10861 Document: 00516982594 Page: 2 Date Filed: 11/29/2023
No. 23-10861
County Sheriffs illegally removed a fence on his property and forced him to
move twenty-five vehicles off the property. He contends that he lived on the
property for twenty-five years and operated a mechanic shop on the property
for seventeen years. After filing his complaint, Plaintiff filed an application
to proceed in forma pauperis, which the district court denied. In the order
denying his application, the district court noted that Plaintiff failed to identify
“by name the defendant to this lawsuit or pa[y] court costs.” The court
consequently ordered Plaintiff to amend his complaint to identify the
defendant by name and pay court costs on or before July 17, 2023. On
August 4, 2023, noting that Plaintiff had not amended his complaint, the
district court dismissed the case without prejudice for failure to comply with
its order.
Under Rule 41(b) of the Federal Rules of Civil Procedure, “a district
court may dismiss an action sua sponte if the plaintiff fails to comply with
court orders.” 1 This Court reviews such dismissals for abuse of discretion. 2
“A district court abuses its discretion when its ruling is based on an
erroneous view of the law or a clearly erroneous assessment of the
evidence.” 3
Plaintiff does not argue that the district court abused its discretion or
otherwise erred in dismissing his complaint under Rule 41(b). His appellate
brief appears to concern a different case he filed in district court that was
dismissed without prejudice for failure to show good cause for not serving
defendants in a timely manner. Plaintiff appealed that dismissal, and this
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1
Nottingham v. Warden, Bill Clements Unit, 837 F.3d 438, 440 (5th Cir. 2016)
(citation omitted).
2
Id. at 441 (citation omitted).
3
Thomas v. Hughes, 27 F.4th 995, 1006 (5th Cir. 2022) (citation omitted).
2
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No. 23-10861
Court affirmed on July 28, 2023. 4 He also argues the merits of his claim that
state officials unlawfully moved the boundary line of his property and forced
him to move vehicles off the property.
Although this Court liberally construes pro se briefs, “pro se parties
must still brief the issues.” 5 Because Plaintiff fails to challenge the basis for
the district court’s dismissal under Rule 41(b), Plaintiff has waived the issue,
and thus, in effect, has not appealed the judgment. 6 Accordingly, the district
court’s without-prejudice dismissal is AFFIRMED.
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4
Friemel v. Deleon, No. 23-10172, 2023 WL 4837889 (5th Cir. July 28, 2023).
5
Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995); Yohey v. Collins, 985 F.2d 222,
225 (5th Cir. 1993) (“[A]rguments must be briefed to be preserved.”).
6
Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987)
(holding that appellant’s failure to identify any error in the basis for the district court’s
judgment “is the same as if he had not appealed that judgment”).
3