     Case: 17-20055      Document: 00514372788         Page: 1    Date Filed: 03/05/2018




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

                                    No. 17-20055
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                          March 5, 2018
                                                                           Lyle W. Cayce
MELVIN SMITH,                                                                   Clerk


                                                 Plaintiff-Appellant

v.

BRAD LIVINGSTON; WILLIAM H. JONES, III; FERNANDO FUSTER;
JAQUELIN BROWN; DERRICK WASHINGTON; TAMIKA WILLIAMS;
GINA D. QUAST; B. BURNETT,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CV-2603


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Melvin Smith appeals the dismissal, for want of prosecution, of his 28
U.S.C. § 1983 civil rights action against various employees of the Texas
Department of Criminal Justice. See FED. R. CIV. P. 41(b). The district court
dismissed the case without prejudice upon finding that Smith had failed to
timely comply with its previous order to provide a more definite statement of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-20055    Document: 00514372788      Page: 2   Date Filed: 03/05/2018


                                 No. 17-20055

the facts underlying his § 1983 claims. That order instructed Smith to file his
more definite statement by January 10, 2017. In an uncontroverted sworn
declaration, Smith asserts that he deposited his statement in the prison mail
system on January 9, 2017. See Cooper v. Brookshire, 70 F.3d 377, 379-81 (5th
Cir. 1995) (prisoner mailbox rule). Furthermore, Smith’s statement was filed
by the district court clerk on January 12, 2017, within two business days after
the filing deadline. See Houston v. Lack, 487 U.S. 266, 269-76 (1988); Sonnier
v. Johnson, 161 F.3d 941, 945 (5th Cir. 1998). Under either scenario, Smith’s
more definitive statement was timely filed. The district court thus abused its
discretion in dismissing his § 1983 action for want of prosecution. See Larson
v. Scott, 157 F.3d 1030, 1032 (5th Cir. 1998).
      Accordingly, we VACATE the order dismissing Smith’s § 1983 action for
want of prosecution and REMAND the case to the district court for further
proceedings.




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