Phillips v. Locke Liddell & Sapp

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-10413 Summary Calendar GEORGE PHILLIPS, SR., Plaintiff-Appellant, versus LOCKE, LIDDELL & SAPP LLP, Defendant-Appellee. _______________________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 3:99-CV-2897-R _______________________________________ November 2, 2000 Before POLITZ, DAVIS, and BENAVIDES, Circuit Judges. PER CURIAM:* Victoria Phillips’ motion to be substituted for George Phillips, who is recently deceased, for his appeal is GRANTED. This appeal follows the district court’s dismissal of George Philips’ complaint due to Phillips’ failure to follow the order of the magistrate judge. The magistrate * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. judge had ordered Phillips to file his suit on a 42 U.S.C. § 1983 complaint form. The complaint form, however, was for prisoners filing a § 1983 suit. Phillips was not a prisoner; nor was he seeking to file a civil rights action. The district court’s sua sponte dismissal of the complaint based upon Phillips’ failure to follow the erroneous order of the magistrate judge was an abuse of discretion. See Fed. R. Civ. P. 41(b); McNeal v. Papasan, 842 F.2d 787, 789-90 (5th Cir. 1988). The district court’s alternative conclusion that Phillips’ suit was duplicative of a suit previously dismissed by another court was also erroneous. VACATED and REMANDED. 2