      Case: 17-40710          Document: 00514513067      Page: 1   Date Filed: 06/14/2018




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


                                             No. 17-40710
                                                                                 FILED
                                                                             June 14, 2018
                                           Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
In the matter of: DAWNA MERYL VALENTINE,

                  Debtor
----------------------------------------

DAWNA VALENTINE,

                 Appellant

v.

JP MORGAN CHASE BANK NATIONAL ASSOCIATION, Successor by
Merger to Chase Home Finance, L.L.C., its Successors and Assigns,

                 Appellee



                      Appeals from the United States District Court
                           for the Southern District of Texas
                                 USDC No. 3:17-CV-13


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
        This appeal results from the district court’s dismissal of a bankruptcy
appeal for want of prosecution. Finding no abuse of discretion, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-40710
                                        I.
      Appellant Dawna Valentine has filed numerous lawsuits since 2011,
seeking to avoid foreclosure on and eviction from property located on
Amberjack Drive in Texas City, Texas. She has also initiated several
bankruptcy proceedings. As the district court explained, the instant appeal
arises from “the interplay between Valentine’s appeal of [a] state court
Judgement for Possession and Valentine’s latest bankruptcy proceeding.”
      On January 13, 2017, United States Bankruptcy Judge Marvin Isgur
granted a motion by JP Morgan Chase asking that a bankruptcy stay be lifted.
That same day, Valentine filed a notice of appeal in district court. A week later,
Valentine filed an amended notice of appeal. The two notices were filed under
different docket numbers.
      On March 23, 2017, the district court entered a Notice of Deficiency,
stating that Valentine had not paid the filing fee nor arranged to pay for the
transcript designated from the bankruptcy court. The Notice of Deficiency
warned Valentine that if she did not cure these deficiencies within fourteen
days, “the district court may dismiss the appeal without further notice.”
      On April 3, 2017, Valentine sent a letter to the district court clerk’s office
requesting that the two cases be consolidated. In that same letter, Valentine
indicated that she “[did] not have funds to pay for the appeal” and that she
“filed proper documentation to be granted an IFP status.” She also claimed she
did not have the funds to pay for the transcript. That same day, she filed a
“Judicial Notice” stating, inter alia, that “[i]t[’]s obvious Appellant does not
have funds to pay the fee for the appeal” and claiming that “Appellant
submitted all relevant documents . . . for an IFP status and this IFP status
shall be honored by the district court.” She attached a notarized affidavit
stating her annual income and the amount of money in her checking and
savings accounts.
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                                 No. 17-40710
      In the following months, Valentine continued to file motions without
curing the deficiency. The district court denied the motions regarding her IFP
status “without prejudice to re-urging after completion of the attached
[Application to Proceed in District Court Without Prepaying Fees or Costs]
form.” The court’s order included an attached copy of the form, yet the record
shows that Valentine never submitted the attached form despite submitting
additional motions, requests for “Judicial Notice,” and affidavits that the court
had already treated as deficient.
      On June 21, the district court issued a “Memorandum Opinion and
Order” and an “Order to Cure Deficiencies.” The district court “decline[d] to
consolidate these cases until certain procedural problems in both cases are
addressed.” The court then noted that Valentine had not paid the filing fees in
either case, nor had she paid for the designated transcripts, despite the fact
that the court had instructed Valentine to file the appropriate paperwork.
Thus, the court ordered that the motion to consolidate in both cases was denied
without prejudice to reurging, and instructed that if Valentine did not cure the
listed deficiencies by July 7, 2017, both cases would be dismissed for want of
prosecution.
      Once again, instead of filing the requested form, Valentine filed a
response to the court’s order where she reiterated many of her complaints
about the handling of her case. She also claimed that she had already filed the
required documentation in January and February 2017, and thus the court
was “requesting Appellant to do something already done” by requiring her to
complete an IFP form. That same day, Valentine filed a new “Motion for Leave
to Proceed Without Payment” and attached another affidavit containing
essentially the same information as her previous affidavits. That same day,
Valentine filed her first Notice of Appeal to this Court.


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                                       No. 17-40710
       On July 11, 2017, the district court dismissed the case for want of
prosecution and denied all pending motions as moot.
                                              II.
       Valentine’s brief does not address the district court’s dismissal for failure
to prosecute. She therefore waives appeal of this claim. 1 Even if her argument
were not waived, however, our review of the record indicates that the district
court did not abuse its discretion in dismissing the case.
       Under Federal Rule of Civil Procedure 41(b), a district court may dismiss
a claim for failure of prosecution. 2 While Rule 41(b) refers to a defendant’s
motion for dismissal, the Supreme Court has recognized the “inherent power”
of district courts to dismiss sua sponte in order to “manage [its] own affairs so
as to achieve the orderly and expeditious disposition of cases.” 3 We review such
dismissals for an abuse of discretion. 4
       Where, as here, the district court order does not specify whether a
dismissal is with or without prejudice, “this [c]ourt has treated a dismissal for
failure to prosecute as . . . a dismissal with prejudice.” 5 We affirm such
dismissals only when “(1) there is a clear record of delay or contumacious
conduct by the plaintiff, and (2) the district court has expressly determined
that lesser sanctions would not prompt diligent prosecution, or the record
shows that the district court employed lesser sanctions that proved to be




       1   See Hickerson v. Christian, 283 F. App’x 251, 253 (5th Cir. 2008) (per curiam)
(unpublished); see also Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (noting that issues
not briefed are abandoned).
        2 See Link v. Wabash R. Co., 370 U.S. 626, 629 (1962) (citing FED. R. CIV. P. 41(b)).
        3 Link, 370 U.S. at 631. See also Boudwin v. Graystone Ins. Co. Ltd., 756 F.2d 399, 400

(5th Cir. 1985) (noting that “[t]his authority flows from the court’s inherent power to control
its docket and prevent undue delays in the disposition of pending cases”).
        4 Boudwin, 756 F.2d at 400.
        5 In re Wood, 199 F. App’x 328, 331 (5th Cir. 2006) (per curiam) (unpublished); see also

Boudwin, 765 F.2d at 400 n.1.
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                                      No. 17-40710
futile.” 6 Typically, this involves “at least one of three aggravating factors . . . .
includ[ing] (1) delay resulting from intentional conduct, (2) delay caused by the
plaintiff personally, and (3) delay causing prejudice to the defendant.’” 7
          Applying these standards to this case, we find that the district court
acted within its discretion in dismissing Valentine’s case. 8 The district court
repeatedly notified Valentine that she needed to either pay the required filing
fees or submit the appropriate form to proceed in forma pauperis, beginning
with the Notice of Deficiency entered on March 23. Valentine continually
ignored the court’s urging, instead filing a variety of motions and judicial
notices that did not cure the deficiencies. Given the court’s repeated warnings,
the record demonstrates that lesser sanctions were and would continue to be
futile.
          Thus, we AFFIRM the district court’s dismissal.




         In re Wood, 199 F. App’x at 332 (citing Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188,
          6

1191 (5th Cir. 1992)).
       7 Boudwin, 756 F.2d at 401 (internal quotation marks omitted).
       8 Cf. In re Hall, 354 F. App’x 842, 843 (5th Cir. 2009) (per curiam) (unpublished)

(finding “no error in the dismissal of the [appellant’s] appeal from the bankruptcy court on
account of his failure to pay the filing fees”).
                                             5
