Melvin Smith v. Brad Livingston, et al, No. 17-20055 (5th Cir. 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 No. 17-20055 Summary Calendar United States Court of Appeals Fifth Circuit FILED March 5, 2018 Lyle W. Cayce Clerk MELVIN SMITH, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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