IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 00-10178
Summary Calendar
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GEORGE ROBINSON,
Plaintiff-Appellant,
versus
JOE T. CHAVEZ, U.S. Deputy Marshal;
JOHN DOE, Joe Chavez’s Supervisor’s
Supervisor; D. W. BRANSOM,
Chief U.S. Marshal,
Defendants-Appellees.
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Appeal from the United States District Court for the
Northern District of Texas
USDC No. 3:98-CV-1205-R
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November 28, 2000
Before JOLLY, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:*
George Benjamin Robinson, federal prisoner No. 16831-034,
appeals the district court’s denial of his FED. R. CIV. P. 60(b)
motion for relief from judgment. Robinson filed a Bivens1
complaint against U.S. Deputy Marshal Joe T. Chavez; “John Doe”
*
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this opinion should not be published and is not precedent except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.
1
See Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
defendants identified as Chavez’s immediate supervisor and the
supervisor’s immediate superior; and D. W. Bransom, Chief U.S.
Marshal for the Northern District of Texas, Dallas Division.
Robinson alleged that Deputy Marshal Chavez subjected Robinson to
excessive force, and the other defendants knowingly lied to federal
prison authorities in order to protect Deputy Marshal Chavez. The
defendants filed a “Pre-Answer Motion to Dismiss” in which they
argued that Robinson’s complaint should be dismissed based on his
failure to comply with a scheduling order and, in the alternative,
that the complaint should be dismissed on the merits. The motion
was unsupported by record evidence. The district court dismissed
the complaint “for the reasons stated in the [`Pre-Answer Motion to
Dismiss’] and for want of prosecution by the Plaintiff.” Robinson
did not file a direct appeal, but he filed a motion for Rule 60(b)
relief. The district court denied this motion.
This court reviews the denial of a Rule 60(b) motion for an
abuse of discretion and we will not grant relief unless the denial
of the motion was so unwarranted as to constitute an abuse of
discretion. Travelers Ins. Co. v. Liljeberg Enter., Inc., 38 F.3d
1404, 1408 (5th Cir. 1994); Seven Elves, Inc. v. Eskenazi, 635 F.2d
396, 402 (5th Cir. 1981).
We hold that the dismissal of the complaint for failure to
prosecute due to Robinson’s relatively short delay in filing a
2
response to the defendants’ motion was an abuse of discretion. See
Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992).
We have reviewed the arguments proffered by the defendants in
their “Pre-Answer Motion to Dismiss” and we find no error in the
district court’s dismissal of Robinson’s official capacity claims
against the defendants. Affiliated Prof'l Home Health Care Agency
v. Shalala, 164 F.3d 282, 286 (5th Cir. 1999). However, our review
of the record discloses no factual or legal basis to support the
district court’s grant of the motion to dismiss with regard to
Robinson’s claims against the defendants in their individual
capacities.
Although federal prisoners are required to exhaust available
administrative remedies prior to filing a Bivens complaint, see
Whitley v. Hunt, 158 F.3d 882, 884-85, 887 (5th Cir. 1998), the
record indicates that it is at least arguable that Robinson
exhausted his administrative remedies prior to filing suit. Cook
v. United States ex rel. U.S. Dept. of Labor, 978 F.2d 164, 166
(5th Cir. 1992). Additionally, we note that it is also arguable
that the administrative remedy requirement does not apply in this
case because such relief would be futile. Whitley, 158 F.3d at 887
(5th Cir. 1998).
Based on the record evidence, the defendants’ assertions that
Robinson’s complaint failed to allege a constitutional violation
3
and, in the alternative, that they are entitled to qualified
immunity are frivolous. As Robinson’s complaint alleged active
misconduct by Chief Marshal Bransom, he was not entitled to
dismissal of the claims against him based on the theory of
respondeat superior.
Accordingly, we AFFIRM the dismissal of the claims against the
defendants in their official capacities, VACATE the dismissal of
the claims against the defendants in their individual capacities,
and REMAND to the district court for consideration on the merits.
AFFIRMED in part, VACATED and REMANDED in part.
4