     Case: 12-10807       Document: 00512162879         Page: 1     Date Filed: 03/04/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           March 4, 2013
                                     No. 12-10807
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JOHN MARK QUAAK,

                                                  Plaintiff-Appellant

v.

THE STATE OF TEXAS; TEXAS DEPARTMENT OF
CRIMINAL JUSTICE-INSTITUTIONAL DIVISION NEAL UNIT,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:12-CV-137


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       John Mark Quaak, Texas prisoner # 1436525, appeals the district court’s
dismissal of his lawsuit without prejudice for failure to prosecute or comply with
a court order, pursuant to FED. R. CIV. P. 41(b). We review the dismissal for an
abuse of discretion. McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir.
1988).




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10807      Document: 00512162879      Page: 2   Date Filed: 03/04/2013

                                   No. 12-10807

        In the district court, Quaak argued that he was not trying to file an action
under 42 U.S.C. §1983, instead he was simply “giving notice” to the State of
Texas, perhaps an allusion to the notice required under Texas Civil Practice and
Remedies Code §101.101. On appeal, although he argues that the dismissal was
erroneous, Quaak simultaneously renews his contention that he has not yet filed
a formal lawsuit, only a pleading notifying the defendants of his intent to sue
them at some point in the future.         He conclusionally asserts that, by its
dismissal order, the district court has conspired with the defendants to violate
his constitutional rights.
        By asserting that he does not yet intend to file a civil rights lawsuit,
Quaak admits his failure to comply with the district court’s show cause order
directing him to withdraw the suit if he did not seek to pursue an action at this
time.    Quaak has thus failed to show an abuse of discretion on the district
court’s part.    See FED. R. CIV. P. 41(b); McCullough, 835 F.2d at 1127.
Accordingly, the district court’s judgment is AFFIRMED. Quaak’s motion for the
appointment of counsel is DENIED.




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