                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
              IN THE UNITED STATES COURT OF APPEALS         February 17, 2006
                      FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 05-40352
                  c/w Nos. 05-40353 and 05-40614
                       USDC No. 9:03-CV-268



THOMAS H. CLAY,

                                   Plaintiff-Appellant,

versus

UNIVERSITY OF TEXAS MEDICAL BRANCH at John Sealy;
UNIVERSITY OF TEXAS MEDICAL BRANCH CORRECTIONAL
HEALTHCARE MANAGEMENT; JOHN SEALY EMPLOYEES; JANE
DOE, #; JOHN DOE, #; Physician Assistant,

                                   Defendants-Appellees.


                      ---------------------
          Appeals from the United States District Court
                for the Eastern District of Texas
                      ---------------------


----------------------------------------------------------------


                           No. 05-40664
                       USDC No. 9:04-CV-272



THOMAS H. CLAY,

                                   Plaintiff-Appellant,

versus


TEXAS DEPARTMENT OF CRIMINAL JUSTICE – CID;
UNIVERSITY OF TEXAS MEDICAL BRANCH - CMC; MARK
HANLEY, Lieutenant; UNIDENTIFIED THOMPSON,
Lieutenant; UNIDENTIFIED HARPER, Lieutenant;
UNIDENTIFIED HOLMAN, Lieutenant; UNIDENTIFIED BLACK,
Sergeant; MRS. UNIDENTIFIED BUSSY, CMC UTMB
                              No. 05-40352
                  (c/w Nos. 05-40353 and 05-40614),
                    No. 05-40664 and No. 05-40812
                                  - 2 -

Employee; UNIDENTIFIED PARDON, Captain; UNIDENTIFIED
PRATT, Assistant Warden; BETTY WILLIAMS, CMC UTMB
Employee; MUNICIPAL DEFENDANTS,

                                     Defendants-Appellees.


                      ---------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                      ---------------------


 ---------------------------------------------------------------



                             No. 05-40812
                         USDC No. 9:05-CV-51



THOMAS H. CLAY,

                                     Petitioner-Appellant,

versus


UNIDENTIFIED SPITZ, Segregation Officer;
UNIDENTIFIED RUSSEL, Segregation Officer,

                                     Respondents-Appellees.
                      ---------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                      ---------------------

Before REAVLEY, JOLLY and OWEN, Circuit Judges.

PER CURIAM:*

     In each of the captioned appeals, Thomas Clay, a Texas

inmate (# 1123123), appeals the district court’s dismissal of his

     *
       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. 05-40352
                (c/w Nos. 05-40353 and 05-40614),
                  No. 05-40664 and No. 05-40812
                                - 3 -

civil rights actions, without prejudice, for failure to

prosecute, based on Clay’s purported refusal to attend a hearing

pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985),

scheduled simultaneously for each of the three actions.     Because

the appeals involve essentially the same set of facts and legal

issues, they are consolidated sua sponte. FED. R. APP. P.

3(b)(2).

     In November 2004, the district court had scheduled a Spears
hearing for December 21, 2004.    On December 2, 2004, Clay had

filed a motion that he be provided with a wheelchair during

transfer for the hearing.   His lawsuit in No. 9:03-CV-268 alleged

that he had suffered a back injury that prevented him from

walking, and he sought to avoid “reinjury” or “further injury.”

On December 21, 2004, the magistrate judge denied the motion to

supply Clay with a wheelchair, stating that “there is no

competent medical evidence that a wheelchair is medically

necessary.”   On the same day, she cancelled the December 21
hearing “until further notice.”

     In each of the three cases, on three separate dates in

January and March 2005, the magistrate judge scheduled a

Spears hearing for 10 a.m. on March 22, 2005.    In each of the

three cases, Clay filed a motion for cancellation or postponement

of the hearing for 180 days, explaining that he needed to obtain

a medical evaluation outside of the Texas prison system so that

he could comply with the magistrate judge’s apparent requirement

that he provide “competent medical evidence” to support his
                             No. 05-40352
                 (c/w Nos. 05-40353 and 05-40614),
                   No. 05-40664 and No. 05-40812
                                 - 4 -

request for a wheelchair.   On March 18, 2005, the magistrate

judge held a conference call, taking testimony from the warden at

Clay’s prison.   Clay was not on this conference call.    The warden

reportedly testified that Clay had told him that he “did not want

to go to court on . . . March 22, 2005,” and that the “only way

to get Inmate Clay to hearings would be a passive use of force.”

     On March 21, 2005, in all three cases, the magistrate judge

issued nearly identical reports recommending that Clay’s civil
rights actions be dismissed, without prejudice, for failure to

prosecute or to comply with a court order, on the ground that

Clay had “refus[ed]” to attend the hearing scheduled for March

22, 2005.    In objections, Clay asserted under penalty of perjury

that the warden had not talked to him about the hearing and that

he, Clay, had not “refuse[d]” to attend the hearing.     The

district court issued orders adopting the magistrate judge’s

recommendation and dismissing Clay’s complaints, without

prejudice.   The district court noted that Clay did not deny that
he had declined transportation.

     “For failure of the plaintiff to prosecute or to comply with

these rules or any order of the court, a defendant may move for

dismissal of an action. . . .” FED. R. CIV. P. 41(b).    Such a

dismissal may be undertaken sua sponte.    Martinez v. Johnson, 104

F.3d 769, 772 (5th Cir. 1997).    This court reviews for abuse of

discretion a dismissal for want of prosecution or failure to obey

a court order.    Larson v. Scott, 157 F.3d 1030, 1032 (5th Cir.

1998).
                            No. 05-40352
                (c/w Nos. 05-40353 and 05-40614),
                  No. 05-40664 and No. 05-40812
                                - 5 -

     We conclude that the district court abused its discretion in

dismissing Clay’s complaints for failure to comply with a court

order.   At a minimum, there is a conflict in the record as to

whether Clay failed to comply with a court order.   Although Clay

moved to cancel or postpone the March 22, 2005, hearing, nowhere

in his motions did he articulate an intent to refuse to attend

the hearing.   Clay’s warden testified under oath that Clay had

told him that he “did not want to go to court on . . . March 22,
2005,” but Clay declared, under penalty of perjury, that he did

not refuse to attend the hearing and that the warden had never

spoken to him about the matter.   There is no explicit evidence in

the record that, as the magistrate judge determined, Clay

“refus[ed]” to attend the hearing or otherwise failed to comply

with the order scheduling the hearing.   Accordingly, we vacate

and remand for further proceedings.

     Clay has filed a separate appellate brief contesting the

district court’s denial of his motions, in Nos. 9:03-CV-268 and
9:04-CV-272, for a temporary restraining order (“TRO”) or

preliminary injunction.   We lack jurisdiction over the denial of

an application for a TRO.   Faulder v. Johnson, 178 F.3d 741, 742

(5th Cir. 1999).   We will reverse the denial of a preliminary

injunction “only under extraordinary circumstances,”   and such a

denial is reviewed for abuse of discretion.   White v. Carlucci,

862 F.2d 1209, 1211 (5th Cir. 1989).   Because Clay failed to make

the necessary showings for a preliminary injunction, and has not

demonstrated that the district court abused its discretion, we
                            No. 05-40352
                (c/w Nos. 05-40353 and 05-40614),
                  No. 05-40664 and No. 05-40812
                                - 6 -

affirm the denial of Clay’s application for a preliminary

injunction.   Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir.

1991) (discussing the four elements necessary for the issuance of

a preliminary injunction).

     Clay also contends that the district court erred in denying

his motions, in Nos. 9:03-CV-268 and 9:04-CV-272, for civil

contempt, in which he argued that the defendants had violated

court orders that he be transported to the federal courthouse for
an earlier-scheduled Spears hearing.    Because Clay failed to

establish by “clear and convincing” evidence that the defendants

were aware of and violated a “definite and specific” court order,

we conclude that the district court did not abuse its discretion

in refusing to hold the defendants in civil contempt.    Shafer v.

Army & Air Force Exchange Serv., 376 F.3d 386, 396 (5th Cir.

2004) (citation omitted), op. clarified, Nos. 03-10074, 03-10220

(5th Cir. Sept. 17, 2004), 2004 WL 2107672.

     As our review of the entire context of the judicial
proceedings in this case reveals no disqualifying judicial bias,

we conclude that there was no abuse of discretion in the district

court's denial of Clay’s recusal motion.    Andrade v. Chojnacki,

338 F.3d 448, 454-55 (5th Cir. 2003).

     Clay’s “Motion for Correction and Filing of Interlocatory

Brief” in No. 05-40352 is denied.

     VACATED AND REMANDED IN PART; AFFIRMED IN PART; MOTION

DENIED.
