                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 22, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 03-10426
                        Conference Calendar



TRAVIS MARK SMITH,

                                    Plaintiff-Appellant,

versus

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL
DIVISION; TEXAS DEPARTMENT OF CRIMINAL JUSTICE; TEXAS
DEPARTMENT OF CRIMINAL JUSTICE BOARD OF PARDONS AND PAROLES;
TEXAS DEPARTMENT OF CRIMINAL JUSTICE INTERNAL AFFAIRS
DIVISION; WAYNE SCOTT; GARY JOHNSON; LEON GUINN; JAMES DUKE;
MARGO GREEN; JAMES MOSSBARGER; ROBERT EASON; CARY COOK;
EMILY BOND; UPHENDRA KATTRAGADDA; GREGORY OLIVER; RONALD
GLOYD; RONALD HAMM; HENRY PENPEK; STATE CLASSIFICATION
COMMITTEE BUREAU OF RECORDS AND CLASSIFICATION; EDWARD
ADAMS; JENNIFER COZBY; STANLEY WILSON; EDWARD RILEY,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                      USDC No. 1:01-CV-206
                      --------------------

Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.

PER CURIAM:*

     Travis Mark Smith, Texas inmate #684080, appeals the denial

of a motion to reopen his civil rights complaint filed pursuant

to 42 U.S.C. § 1983.   Smith’s motion is construed as arising


     *
        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that this opinion should not be published and is not precedent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. 03-10426
                                 -2-

under FED. R. CIV. P. 60(b).   See Halicki v. Louisiana Casino

Cruises, Inc., 151 F.3d 465, 470 (5th Cir. 1998).    The denial of

a Rule 60(b) motion does not bring up the underlying judgment for

review and is not a substitute for appeal.    See Matter of Ta Chi

Navigation (Panama) Corp. S.A., 728 F.2d 699, 703 (5th Cir.

1984).   We review the denial of a FED. R. CIV. P. 60(b) motion for

an abuse of discretion.    Travelers Ins. Co. v. Liljeberg Enter.,

38 F.3d 1404, 1408 (5th Cir. 1994).

     “Rule 41(b), [FED. R. CIV. P.], authorizes a district court

to dismiss with prejudice an action for want of prosecution by

the plaintiff.”    Dorsey v. Scott Wetzel Serv., 84 F.3d 170, 171

(5th Cir. 1996).    Rule 41(b) dismissals are affirmed “only upon

a showing of a clear record of delay or contumacious conduct by

the plaintiff, . . . and where lesser sanctions would not serve

the best interest of justice.”    Id.

     The record shows and Smith concedes that he received the

district court’s initial order to file an amended complaint.

Smith did not comply with the order.    He now argues that

compliance was impossible and was not warranted because he did

not receive the district court’s second order and notice of the

dismissal, he had filed his initial complaint on the proper form,

and compliance with the district court’s initial order would have

been impossible.   The record shows that Smith demonstrated the

ability to file pleadings and contact the court.
                           No. 03-10426
                                -3-

     The case file shows a clear record of delay and contumacious

conduct on the part of Smith in failing to comply with the

district court’s orders.   Dorsey, 84 F.3d at 171.   Smith has not

shown that the district court’s denial of his motion to reopen

was an abuse of discretion.   Travelers Ins. Co., 38 F.3d at 1408.

Accordingly, the judgment is AFFIRMED.
