                                                         [DO NOT PUBLISH]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., 470 F.3d 1036, 1040 (11th Cir.

2006); Burke v. Smith, 252 F.3d 1260, 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, 256 F.3d 1276, 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, 512 U.S.

477, 487, 114 S. Ct. 2364, 2372 (1994).

      AFFIRMED.




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