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Melvin Smith v. Brad Livingston , 713 F. App'x 405 ( 2018 )


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  •      Case: 17-20055      Document: 00514372788         Page: 1    Date Filed: 03/05/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-20055
Fifth Circuit
FILED
Summary Calendar                          March 5, 2018
Lyle W. Cayce
MELVIN SMITH,                                                                   Clerk
Plaintiff-Appellant
v.
BRAD LIVINGSTON; WILLIAM H. JONES, III; FERNANDO FUSTER;
JAQUELIN BROWN; DERRICK WASHINGTON; TAMIKA WILLIAMS;
GINA D. QUAST; B. BURNETT,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CV-2603
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Melvin Smith appeals the dismissal, for want of prosecution, of his
    28 U.S.C. § 1983
     civil rights action against various employees of the Texas
Department of Criminal Justice. See FED. R. CIV. P. 41(b). The district court
dismissed the case without prejudice upon finding that Smith had failed to
timely comply with its previous order to provide a more definite statement of
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-20055    Document: 00514372788      Page: 2   Date Filed: 03/05/2018
No. 17-20055
the facts underlying his § 1983 claims. That order instructed Smith to file his
more definite statement by January 10, 2017. In an uncontroverted sworn
declaration, Smith asserts that he deposited his statement in the prison mail
system on January 9, 2017. See Cooper v. Brookshire,
    70 F.3d 377
    , 379-81 (5th
Cir. 1995) (prisoner mailbox rule). Furthermore, Smith’s statement was filed
by the district court clerk on January 12, 2017, within two business days after
the filing deadline. See Houston v. Lack,
    487 U.S. 266
    , 269-76 (1988); Sonnier
v. Johnson,
    161 F.3d 941
    , 945 (5th Cir. 1998). Under either scenario, Smith’s
more definitive statement was timely filed. The district court thus abused its
discretion in dismissing his § 1983 action for want of prosecution. See Larson
v. Scott,
    157 F.3d 1030
    , 1032 (5th Cir. 1998).
Accordingly, we VACATE the order dismissing Smith’s § 1983 action for
want of prosecution and REMAND the case to the district court for further
proceedings.
2