Wilson v. Moreno ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-20093
Conference Calendar
NATHAN JAMES WILSON,
Plaintiff-Appellant,
versus
M. MORENO; DOUGLAS OSTERBERG;
W.E. COX,
Defendants-Appellees.
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Texas
USDC No. CA-H-95-4605
- - - - - - - - - -
June 26, 1996
Before HIGGINBOTHAM, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Nathan James Wilson, Texas prisoner #718250, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 action for
want of prosecution. Liberally construed, his brief argues that
the district court abused its discretion in dismissing his action
for want of prosecution. Because Wilson failed to comply with
the district court’s order to file an application for leave to
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
No.96-20093
- 2 -
proceed in forma pauperis or to pay the $120 district court
filing fee, and Wilson failed to file any other pleadings either
explaining his failure to comply or requesting additional time,
the district court did not abuse its discretion in dismissing his
action for want of prosecution. See Gonzalez v. Firestone Tire &
Rubber Co., 610 F.2d 241, 247 (5th Cir. 1980).
For the first time on appeal, Wilson argues that prison
officials failed to provide information that he needed to
complete and file an IFP application and thereby interfered with
his right of access to the courts. Because Wilson raises this
claim for the first time on appeal, this court reviews the claim
only for plain error. Douglass v. United Services Automobile
Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). Wilson has not
alleged that he needed to obtain specific information from prison
officials to complete his IFP application. He also failed to
allege that his position as a litigant was prejudiced as a result
of prison officials’ actions, as the district court merely
dismissed his action without prejudice and advised him that upon
the proper showing he could obtain relief from the order of
dismissal in accordance with Fed. R. Civ. P. 60(b). See Walker
v. Navarro County Jail, 4 F.3d 410, 413 (5th Cir. 1993).
Although a dismissal without prejudice may operate as a dismissal
with prejudice if the statute of limitations has expired, see
McCollough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988),
Wilson has not alleged that the statute of limitations has
No.96-20093
- 3 -
expired, and the facts alleged do not indicate the date of the
complained of incident. Because Wilson has not shown plain
error, we decline to review his denial-of-access-to-the-courts
claim.
This appeal is without arguable merit and is thus frivolous.
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because
the appeal is frivolous, it is DISMISSED. We caution Wilson that
any future frivolous appeals filed by him or on his behalf will
invite the imposition of sanctions. To avoid sanctions, Wilson
is cautioned further to review any pending appeals to ensure that
they do not raise arguments that are frivolous because they have
been previously decided by this court.
APPEAL DISMISSED; SANCTION WARNING ISSUED.