Greenough v. Gray

Case: 22-40190 Document: 00516682576 Page: 1 Date Filed: 03/20/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 22-40190 March 20, 2023
Summary Calendar
Lyle W. Cayce
Clerk
Randall T. Greenough,
Plaintiff—Appellant,
versus
Sharilla Gray,
Defendant—Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:21-CV-75
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam:*
Randall T. Greenough, an inmate confined at the Polunsky Unit of the
Texas Department of Criminal Justice, Correctional Institutions Division,
appeals the district court’s denial of his motion for default judgment and
dismissal of his complaint for failure to state a claim, under Federal Rule of
Civil Procedure 12(b)(6).
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-40190 Document: 00516682576 Page: 2 Date Filed: 03/20/2023
No. 22-40190
We review a district court’s denial of entry of default judgment for
abuse of discretion. Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001); see Trout
Point Lodge, Ltd. v. Handshoe, 729 F.3d 481, 491 (5th Cir. 2013). We review
a district court’s order on a motion to dismiss for failure to state a claim de
novo. Christiana Tr. v. Riddle, 911 F.3d 799, 802 (5th Cir. 2018). Greenough
argues that he is entitled to entry of default judgment because Gray filed her
answer out of time—forty-one days after the district court issued an order to
answer or otherwise plead to the plaintiff’s complaint, rather than the
required forty. However, as the district court correctly found, Gray did
comply with the order. She timely filed a motion to dismiss forty days after
the order to answer was sent. See FED. R. CIV. P. 5(b)(2)(E) (service
complete when filed or sent by electronic means, unless filer or sender learns
that it did not reach the person to be served). The district court did not err
in denying Greenough’s motion for entry of default judgment.
Greenough’s brief fails to raise any argument challenging the district
court’s dismissal of his complaint for failure to state a claim. He has therefore
abandoned any challenge to the district court’s dismissal. Sissom v. Univ. of
Texas High Sch., 927 F.3d 343, 349 (5th Cir. 2019) (citing Yohey v. Collins, 985
F.2d 222, 225 (5th Cir. 1993) (Although we liberally construe the briefs of pro
se appellants, even pro se appellants must brief their arguments to preserve
them).
Accordingly, the district court’s judgment is AFFIRMED. It is
ordered that Appellant’s related motions for judicial notice are DENIED.
2