Filed: Mar. 25, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 25, 2005 Charles R. Fulbruge III Clerk No. 04-40577 Summary Calendar DONALD ROGER BURR, Plaintiff-Appellant, versus A. D. CASKEY; RAYMOND GONZALES, Assistant Warden; ROBERT PARKER, Regional IV Director; NORRIS JACKSON, Regional Assistant to Robert Parker; MARTHA WEAR, Regional Assistant to Robert Parker; ET AL., Defendants-Appellees. - Appeal from the United States District Co
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 25, 2005 Charles R. Fulbruge III Clerk No. 04-40577 Summary Calendar DONALD ROGER BURR, Plaintiff-Appellant, versus A. D. CASKEY; RAYMOND GONZALES, Assistant Warden; ROBERT PARKER, Regional IV Director; NORRIS JACKSON, Regional Assistant to Robert Parker; MARTHA WEAR, Regional Assistant to Robert Parker; ET AL., Defendants-Appellees. - Appeal from the United States District Cou..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 25, 2005
Charles R. Fulbruge III
Clerk
No. 04-40577
Summary Calendar
DONALD ROGER BURR,
Plaintiff-Appellant,
versus
A. D. CASKEY; RAYMOND GONZALES, Assistant Warden; ROBERT
PARKER, Regional IV Director; NORRIS JACKSON, Regional
Assistant to Robert Parker; MARTHA WEAR, Regional Assistant
to Robert Parker; ET AL.,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CV-74
--------------------
Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Donald Roger Burr, formerly Texas prisoner # 907964, appeals
the dismissal of his 42 U.S.C. § 1983 complaint as malicious
and frivolous. In his complaint, Burr asserted that the
defendants: (1) were deliberately indifferent to his medical
needs; (2) failed to protect him from assault; (3) subjected him
to unconstitutional conditions of confinement; (4) retaliated
against him and interfered with legal mail; (5) failed to provide
*
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this opinion should not be published and is not precedent except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.
No. 04-40577
-2-
medically necessary meals; and (6) denied him access to the
courts. Burr later added additional claims, including a claim
that he was being held beyond the expiration of his sentence.
On appeal, Burr argues that the district court erred by
dismissing his entire complaint without allowing him to submit
evidence to support his claims against certain defendants named
in a later motion to supplement. Burr also has submitted two
supplemental briefs in which he states he will provide this court
with “examples and reasons” to show that his supplemental claims
were not frivolous. These motions are DENIED. We also conclude
that the district court did not abuse its discretion in denying
Burr’s motion to supplement; Burr’s motion to supplement failed
to describe the nature of his claims against these new
defendants. See Lowrey v. Texas A&M Univ. Sys.,
117 F.3d 242,
245 (5th Cir. 1997); FED. R. CIV. P. 7(b)(1) (motions must “state
with particularity the grounds therefor”).
Burr next argues that the district court erred by dismissing
his complaint without an evidentiary hearing. A district court
may dismiss a complaint without a hearing if it determines that a
complaint would be frivolous even if further factually developed.
See Eason v. Thaler,
14 F.3d 8, 10 (5th Cir. 1994). The district
court gave Burr several opportunities to further develop his
claims, including holding a telephonic hearing and by allowing
several amendments to his complaint. We conclude that the
No. 04-40577
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district court did not abuse its discretion by failing to also
order an evidentiary hearing.
Burr requests that this court review his entire complaint
and grant relief on any meritorious claims. We “review only
those issues presented to us; we do not craft new issues or
otherwise search for them in the record”. United States v.
Brace,
145 F.3d 247, 255 (5th Cir. 1988) (en banc).
Burr argues that the district court erred by considering
his prior litigation history in concluding that he was a
“recreational” litigator and that the instant complaint was
malicious. Burr offers no specific argument attacking the
district court’s conclusion of frivolousness. Because the
district court’s conclusion that the complaint was frivolous
provides an alternative basis for dismissal, we decline to
address this issue.
Burr also argues that the order by which District Judge
Hinojosa was recused and the case was reassigned to District
Judge Crane was invalid; as a result, Burr argues that any
subsequent order signed by Judge Crane was invalid. Burr’s
argument is based on an error in the style of the recusal order.
This error was at most a clerical error which did not render the
recusal order invalid; Rule 25(d)(1) of the Federal Rules of
Civil Procedure provides that following the substitution of a
public officer, “any misnomer [in the party name] not affecting
the substantial rights of the parties shall be disregarded.”
No. 04-40577
-4-
Burr also argues that the district court showed favoritism
by striking his pleadings for violating a local rule of the
Southern District of Texas. The only specific instance discussed
on appeal involved the striking of his objections to the recusal
order; the district court struck Burr’s pleading for failing to
comply with a local rule that required submission of a proposed
order. Burr asserts that a proposed order was not required
because he was only filing objections. However, this pleading
also requested various forms of relief, such as the dismissal of
all improperly styled orders and permission to amend his request
to recuse the magistrate judge. We conclude that the district
court did not abuse its discretion by striking this pleading.
Finally, Burr argues that the district court erred by not
granting a default judgment against the defendants. A default
judgment is a “drastic remedy, not favored by the Federal Rules
and resorted to by courts only in extreme situations.” Sun Bank
of Ocala v. Pelican Homestead and Savings Ass’n,
874 F.2d 274,
276 (5th Cir. 1989) (footnote omitted). A party may seek a
default judgment if an adverse party has failed “to plead or
otherwise defend.” FED. R. CIV. P. 55(a). In the instant case,
because the Attorney General of Texas responded to the court’s
orders and defended against Burr’s complaint, the district court
did not abuse its discretion by declining to order a default
judgment.
ALL OUTSTANDING MOTIONS DENIED; AFFIRMED.