[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                            May 29, 2008
                             No. 08-10478                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                D. C. Docket No. 07-00955-CV-ORL-18-KRS

DERICK SMITH,


                                                           Plaintiff-Appellant,

                                  versus

PENNY L. BURNSIDE,
KIM DICKEY,
ANGELA FRYER,


                                                        Defendants-Appellees.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                              (May 29, 2008)

Before BIRCH, DUBINA and CARNES, Circuit Judges.

PER CURIAM:
       This is Derick Smith’s pro se appeal of the district court’s order striking his

re-filed complaint in this 42 U.S.C. § 1983 civil rights action. After the district

court dismissed his initial complaint without prejudice, a decision that Smith did

not appeal within the time set forth by Federal Rule of Appellate Procedure

4(a)(1)(B), Smith re-filed a complaint in the same case. The district court struck

the re-filed complaint and noted that if Smith wished to pursue his claims he

should file a complaint in the proper venue, the Northern District of Florida. Smith

contends that the district court abused its discretion by striking his re-filed

complaint.1

       Whether construed as a denial of leave to file an amended complaint, or as

the denial of a Rule 60(b) motion, we review the district court’s decision to strike

Smith’s re-filed complaint only for an abuse of discretion. See Fla. Evergreen

Foliage v. E.I. DuPont De Nemours and Co., 

, 1040 (11th Cir.

2006); Burke v. Smith, 

, 1263 (11th Cir. 2001).

       The district court did not abuse its discretion by striking the re-filed

complaint. It was not the proper vehicle for attacking a final judgment which was

entered almost four months earlier. Moreover, even if the district court had



       1
          We cannot consider the arguments Smith raises regarding venue because he did not file
a timely appeal from the district court’s dismissal of his initial complaint. Fed. R. App. P.
4(a)(1)(B); see also Rinaldo v. Corbett, 

, 1278 (11th Cir. 2001).

                                               2
construed Smith’s filing as a Rule 60(b) motion, that motion would have been due

to be denied as Smith’s claim was still barred. See Heck v. Humphrey, 

, 487, 

, 2372 (1994).

      AFFIRMED.




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