     Case: 09-30937 Document: 00511405322 Page: 1 Date Filed: 03/09/2011




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

                                                  FILED
                                                                            March 9, 2011

                                       No. 09-30937                         Lyle W. Cayce
                                                                                 Clerk

CARLOS MCGREW,

                                                   Plaintiff–Appellant,
v.

JOSHUA MCQUEEN, Former Lieutenant; DAVID BROWN, Sergeant; JANE
DOE, Nurse; CLINT DUNN, Sergeant,

                                                   Defendants–Appellees.




                    Appeal from the United States District Court
                        for the Middle District of Louisiana
                              USDC No. 3:08-CV-187


Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
           Carlos McGrew, Louisiana state prisoner #413135, filed a pro se civil
rights complaint pursuant to 42 U.S.C. § 1983, alleging that he was beaten by
correctional officers McQueen, Brown, and Dunn, and denied sufficient medical
care by nurse Doe. The district court dismissed this suit without prejudice due
to the failure to effect timely service. McGrew now appeals. We affirm.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                     No. 09-30937

                                           I
      As we will explain in more detail below, the suit that is the subject of this
appeal (McGrew II) was the second suit McGrew filed against these same
defendants that alleged the same facts. In both suits, he complained of a beating
he alleges to have suffered at the hands of McQueen, Brown, and Dunn, which
involved his being hit with wooden sticks after being restrained.         He also
asserted that nurse Doe was deliberately indifferent to his injuries. He argued
that this violated his right under the federal Constitution’s Eighth Amendment
to be free from cruel and unusual punishment. McGrew stated that this took
place on April 27 and 28, 2007. As this appeal concerns only McGrew’s failure
to effect timely service, the merits of these claims will not be discussed.
      McGrew filed McGrew II in March 2008. At the time of filing, he conceded
that he had previously filed a suit captioned McGrew v. Brown,1 (McGrew I),
which involved the same facts and was dismissed at his request without
prejudice to refiling.       However, the dismissal in that suit did include the
condition that McGrew could not bring another action involving the same facts
and parties in forma pauperis (IFP). Despite this, McGrew moved to proceed
IFP in McGrew II. In light of McGrew I, the magistrate judge denied that
request. The magistrate judge ordered a 20-day extension of time for McGrew
to pay the $350 filing fee, and McGrew paid that fee.
      The magistrate judge ordered the United States Marshals to serve the
defendants in August 2008. Subsequently, on October 27, 2008, the magistrate
judge vacated that order, since McGrew was not proceeding IFP, insofar as the
order may have been interpreted as directing the Marshals to effect service prior
to McGrew’s payment of applicable fees.         The new order gave McGrew an
additional 30 days in which to pay a $250 deposit, for service costs of $45 per



      1
          No. 3:07-CV-710.

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service and $.485 per mile. The order also warned McGrew that his failure to
comply within the time limit could result in the dismissal of the action in
accordance with F ED. R. C IV. P. 4(m). Though McGrew concedes that he received
the order, he later asserted that he was moved to a different part of the prison
facility and “separated” from his legal materials before he “could formally and
properly respond” to the order. He states he was then moved to a different
facility, though specific dates are not provided. He contends that he made
attempts to “retrieve [his] legal materials so as to inform this [district] court” as
to his whereabouts, but did not regain his legal materials until May 2009.
      Since McGrew had not paid to effect service, despite the aforementioned
extensions and warnings, on April 7, 2009, the magistrate judge recommended
that McGrew II be dismissed as a result of McGrew’s failure to effect timely
service. The magistrate judge’s report and recommendation stated that McGrew
had 10 days to file objections to the report, and that no extensions would be
granted.   Almost two months after the deadline for objections had passed,
McGrew filed a motion for leave to submit belated and alternative summons,
signed June 15, 2009. Moreover, because he insisted he could not afford the
costs of service, he proposed to provide the court “with sufficient postage (2x 44
cents stamps) to mail all parties [a] copy of [the] summons.”
      The district court ordered the action dismissed without prejudice for
McGrew’s failure to effect timely service. The order was entered on August 13,
2009, on the basis of the district court’s “independent[] review of the entire
record.”
      On September 2, 2009, the district court received a motion McGrew styled
as a motion to “Re-Open the Case and to Seek Relief from Judgment.” McGrew
dated the motion August 27, 2009. On September 15, 2009, the district court
denied that motion and additionally stated that the motion to submit belated
and alternative summons was denied. McGrew filed notice of his intent to

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appeal on September 30, 2009. We have granted McGrew permission to proceed
IFP in this appeal.
                                                    II
                                                    A
           Pursuant to 28 U.S.C. § 1291, this court has jurisdiction over properly
filed appeals of final decisions of the district courts. We treat dismissals that
are technically without prejudice, yet owing to statutes of limitations act with
prejudice, as dismissals with prejudice.2 Claims under 42 U.S.C. § 1983 are
governed by the applicable state statute of limitations.3 The prescriptive period
for personal injury actions in Louisiana is one year.4 As the underlying events
took place in April 2007, we treat this case as a dismissal with prejudice.
       To ascertain the breadth of our jurisdiction to review this case, we
consider the timing of McGrew’s notice of appeal. We will interpret McGrew’s
pleadings liberally in light of his pro se status.5 Timely filing of notice of appeal
is required for jurisdiction to vest in this court,6 here within 30 days of the
judgment or order from which an appeal is taken.7 If a motion is filed under
F ED. R. C IV. P. 59(e) to alter or amend a judgment, however, these 30 days would
run from the date of the denial of the F ED. R. C IV. P. 59(e) motion.8




       2
           Sealed Appellant v. Sealed Appellee, 452 F.3d 415, 417 (5th Cir. 2006).
       3
           Clifford v. Gibbs, 298 F.3d 328, 332 (5th Cir. 2002).
       4
           LA . CIV . CODE ANN . art. 3492.
       5
        Texas Comptroller of Pub. Accounts v. Liuzza (In re Tex. Pig Stands, Inc.), 610 F.3d
937, 941 n.4 (5th Cir. 2010).
       6
           Bowles v. Russell, 551 U.S. 205, 210 (2007).
       7
           FED . R. APP . P. 4(a)(1)(A).
       8
           FED . R. APP . P. 4(a)(4)(A)(iv).

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       Therefore we must consider whether McGrew’s motion to re-open the case
is properly read as a F ED. R. C IV. P. 59(e) motion, even though not captioned as
such. Here, the district court entered its dismissal order on August 13, 2009,
and McGrew’s motion to “Re-Open the Case and to Seek Relief from Judgment”
was filed on September 2, 2009. We have previously stated that for the purposes
of one’s time to file a notice of appeal, “[t]his court treats a motion which calls
into question the correctness of the judgment, does not seek relief for purely
clerical errors, and is served within [the time for filing in Rule 59(e)] after the
entry of judgment, as a Rule 59(e) motion.”9 During the pendency of this appeal,
F ED. R. C IV. P. 59(e) has been amended, extending its time for filing from 10 to
28 days. We have said in other contexts “that our own jurisprudence requires
that, to the maximum extent possible, the amended Rules should be given
retroactive application.”10 Indeed, we have previously applied that guidance to
amendments to Rule 59(e).11 However, we will not resolve today whether the 28-
day period in amended Rule 59(e) applies to McGrew’s filing because the parties
have not briefed or contested this issue. We will assume, without deciding, that
the rule change applies retroactively. This also obviates the need to inquire
whether there is evidence to support construing the motion to reopen to have
been filed earlier, based on the prison mailbox rule, than on the date the district
court actually received it.12
       Applying the 28-day period here, McGrew’s motion to re-open the case
could be construed as permitting his appeal to be timely filed on September 30,


       9
         Burt v. Ware, 14 F.3d 256, 258 (5th Cir. 1994) (per curiam) (internal citations
omitted).
       10
         Skoczylas v. Fed. Bureau of Prisons, 961 F.2d 543, 546 (5th Cir. 1992) (citation and
quotation marks omitted).
       11
            Long v. Simmons, 77 F.3d 878, 879 (5th Cir. 1996).
       12
            Cooper v. Brookshire, 70 F.3d 377, 379 (5th Cir. 1995).

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2009 if it requested that the dismissal of McGrew II be reconsidered. It is clear
that most of the motion to reopen was addressed to McGrew I, not McGrew II.
Even interpreting McGrew’s pleadings liberally in light of his pro se status,13 it
is not entirely clear that he asked the district court to reconsider the dismissal
of McGrew II, but we will assume, without deciding, that his motion did so and
therefore that his appeal was timely.
                                                B
       Effecting timely service is governed by F ED. R. C IV. P. 4(m), which states:
       If a defendant is not served within 120 days after the complaint is
       filed, the court—on motion or on its own after notice to the
       plaintiff—must dismiss the action without prejudice against that
       defendant or order that service be made within a specified time. But
       if the plaintiff shows good cause for the failure, the court must
       extend the time for service for an appropriate period.

We have said that determining “‘good cause’ under any particular set of
circumstances is necessarily fact-sensitive.”14 In general, we review a district
court’s dismissal of an action for failure to effect timely service for abuse of
discretion.15 We apply a heightened standard of review where the dismissal is
without prejudice, but acts as a dismissal with prejudice 16 —as in the instant
case. We have said, “[a] district court’s dismissal with prejudice is warranted
only where a clear record of delay or contumacious conduct by the plaintiff exists
and a lesser sanction would not better serve the interests of justice.”17 Finally,
we have noted that when affirming dismissals with prejudice, we have “generally


       13
         Texas Comptroller of Pub. Accounts (In re Tex. Pig Stands, Inc.), 610 F.3d 937, 941
n.4 (5th Cir. 2010).
       14
            Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d 444, 446 (5th Cir. 1996).
       15
            Fournier v. Textron, Inc., 776 F.2d 532, 534 (5th Cir. 1985).
       16
            Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 325-26 (5th Cir. 2008).
       17
            Id. at 326 (internal citations and quotation marks omitted).

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found at least one of three aggravating factors: (1) delay caused by the plaintiff
himself and not his attorney; (2) actual prejudice to the defendant; or (3) delay
caused by intentional conduct.” 18
       To warrant dismissal, we must find a delay “longer than just a few
months; instead, the delay must be characterized by significant periods of total
inactivity.”19 Here we have such a record of delay stretching back to McGrew I.
McGrew concedes that he has previously filed a suit—McGrew I—addressing the
same facts and parties as the instant action. He voluntarily dismissed that suit
only after the defendants had filed a motion for summary judgment asserting
that McGrew had failed to exhaust administrative remedies and after the
magistrate judge in that case recommended that the defendants’ motion be
granted. Despite the fact that a condition of the voluntary dismissal granted in
McGrew I was his inability to refile the case IFP, McGrew nonetheless filed a
motion to proceed IFP in McGrew II.
       McGrew has similarly delayed these proceedings. In denying his improper
request for IFP status, the court granted him a 20-day extension. The court
granted another extension, 30 days, in its order issued on October 27, 2008,
directing McGrew to pay for service by the United States Marshals. In his brief
to this court, McGrew concedes that he received this order.20                  He failed to
comply. McGrew did not communicate with the court until his June 15, 2009,
motion for leave to submit belated and alternative summons, approximately
eight months after the granting of the extension. In that motion he informed the
court that he lacked his legal materials until an unspecified date in May 2009,


       18
            Id. (internal citations, quotation marks, and brackets omitted).
       19
         Id. at 327 (quoting McNeal v. Papasan, 842 F.2d 787, 791 (5th Cir.1988)) (internal
quotation marks omitted).
       20
       The record does not evince a specific date of service on McGrew for the order, though
McGrew never formally filed an objection.

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and thus could not “formally and properly” respond. Notably, McGrew does not
suggest why he could not inform the court of his whereabouts.
       Even accepting McGrew’s contentions in his June 15 motion, it is never
explained why, with knowledge of a 30-day extension granted in October 2008,
after recovering access to “all of his legal materials” in May 2009, he did not
communicate with the court until June 15, 2009.
       We cannot say that lesser sanctions would better serve the interests of
justice in this case.      In fact, the lower court has already failed to gain
compliance, despite its use of a variety of lesser measures. For instance, the
court allowed McGrew to voluntarily dismiss McGrew I on the condition that he
not proceed IFP in a later action. He nonetheless filed to proceed IFP in the
district court in this action. In an attempt to provide McGrew every opportunity
to come into compliance with the rules, the lower court used its discretion to
grant McGrew a 20-day extension after denying his IFP motion. Similarly, when
the court directed McGrew to pay the costs of effecting service by the United
States Marshals, it granted him an additional 30-day extension and expressly
warned him that dismissal was a potential result if he failed to effect service.
The magistrate judge did not issue her recommendation that the case be
dismissed for failure to effect timely service for many months after the
expiration of this extension. The court’s recurring resort to additional time for
McGrew is relevant, since we have previously noted the significance of the
repeated granting of additional time.21
       We also note that McQueen and his fellow defendants assert that they are
prejudiced by virtue of lost documentary evidence and unavailable witnesses as
a result of McGrew’s delay in the prosecution of his claims. We are satisfied, in
light of the aforementioned clear record of delay and the failure of lesser

       21
          Callip v. Harris Cnty. Child Welfare Dep’t, 757 F.2d 1513, 1519-20 (5th Cir. 1985)
(per curiam).

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sanctions, that the district court did not abuse its discretion in dismissing
McGrew II.
                                              III
       We also affirm the lower court’s dismissal of the motion to re-open insofar
as it may be construed as containing a motion under F ED. R. C IV. P. 60(b)(4)
and (6) with respect to McGrew I. F ED . R. C IV . P. 60(b)(4) permits a court to
provide relief from a “void” judgment, while F ED. R. C IV. P. 60(b)(6) is a catchall
provision including “any other reason that justifies relief.” A district court is
without discretion to enter a void judgment, and therefore we review such
challenged judgments anew.22 There is no time limit on an attack on a void
judgment,23 while F ED. R. C IV. P. 60(b)(6) requires that the motion be made
“within a reasonable time.”24 We review the denial of a F ED. R. C IV. P. 60(b)(6)
motion for abuse of discretion.25
       In order for McGrew to prevail pursuant to F ED. R. C IV. P. 60(b)(4), a
judgment would need to have been rendered without “jurisdiction of the subject
matter, or of the parties, or if [the district court] acted in a manner inconsistent
with due process of law.”26 McGrew insisted in his motion to reopen that the
district court wrongly dismissed McGrew I for a failure to exhaust his
administrative remedies. He also discusses these topics extensively in his brief
to this court. His procedural history is incorrect: The district court granted a
voluntary dismissal of McGrew I. There are no facts in the record to indicate


       22
            N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 142 (5th Cir. 1996).
       23
            Id.
       24
         Samaras v. America’s Favorite Chicken Co. (In re Al Copeland Enters., Inc.), 153 F.3d
268, 272 (5th Cir. 1998).
       25
            Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 747 (5th Cir. 1995).
       26
            New York Life Ins. Co., 84 F.3d at 143 (internal quotation marks and citations
omitted).

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                                           No. 09-30937

that the voluntary dismissal of McGrew I was void, and thus a motion under
F ED. R. C IV. P. 60(b)(4) would be properly denied.
      Similarly, a challenge under F ED. R. C IV. P. 60(b)(6), assuming the motion
to be timely filed, would be properly rejected. F ED. R. C IV. P. 60(b)(6) is a remedy
available “only if extraordinary circumstances are present” and its availability
is “narrowly circumscribed.”27 Again, McGrew’s argument turns on the defects
he alleges exist in the district court’s dismissal of McGrew I for his failure to
exhaust administrative remedies prior to filing McGrew I.           We note again,
however, that McGrew I was not dismissed for failure to exhaust administrative
remedies.       The action was actually voluntarily dismissed.        The requisite
“extraordinary circumstances” are not present.
                                       *        *         *
      We AFFIRM.




      27
           Batts, 66 F.3d at 747 (citation omitted).

                                               10
