Johnson v. Forrest Cty Sheriff

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 26, 2003
Charles R. Fulbruge III
Clerk
No. 02-60618
Summary Calendar
RAYFIELD JOHNSON
Plaintiff - Appellant
v.
FORREST COUNTY SHERIFF’S DEPARTMENT; BILLY MAGEE, Sheriff;
DAVID ALLEN, Supervisor of Forrest County; LYNN CARTLIDGE,
Supervisor of Forrest County; JOHNNY DUPREE, Supervisor of
Forrest County; HARRY V. HICKMAN, JR., Supervisor of Forrest
County; CHARLES BOLTON, Forrest County Regional Jail Employee;
NICOLET ROBERTS
Defendants - Appellees
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:96-CV-291-PG
--------------------
Before KING, Chief Judge, and WIENER and CLEMENT, Circuit Judges.
PER CURIAM:*
Rayfield Johnson, Mississippi prisoner # R0955, appeals the
denial of his FED. R. CIV. P. 60(b) motion, which we construe as
an involuntary dismissal with prejudice of his Eighth Amendment
claim for failure to prosecute and review for an abuse of
discretion. See FED. R. CIV. P. 41(b); Berry v. CIGNA/RSI-CIGNA,
975 F.2d 1188, 1190-91 (5th Cir. 1992).
*
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that this opinion should not be published and is not precedent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. 02-60618
-2-
The record supports our conclusion that the district court
did not abuse its discretion. Johnson never prosecuted the
Eighth Amendment claim or questioned its status during the five-
year period in which he litigated his First Amendment claim in
the district and appellate courts. A five-year period of total
inactivity plainly constitutes a clear record of delay. See
Harrelson v. United States, 613 F.2d 114, 116 (5th Cir. 1980).
Consideration of the futility of lesser sanctions was unwarranted
given Johnson’s significant inactivity. See Veazey v. Young’s
Yacht Sale & Serv., Inc., 644 F.2d 475, 477 (5th Cir. 1981); see
also Harrelson, 613 F.2d at 116.
We reject Johnson’s contention that his Spears** hearing
testimony should have prompted the magistrate judge to inquire
further about the existence of claims other than his First
Amendment claim. The magistrate judge does not have a duty to
interrogate the pro se prisoner in such a way as to exhaust
conceivable causes of action; Johnson was “the master of his
complaint” and bore the ultimate responsibility for articulating
his claims at the Spears hearing. See Davis v. Scott, 157 F.3d
1003, 1005-06 (5th Cir. 1998).
AFFIRMED.
**
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).