Burr v. Caskey

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 25, 2005

Charles R. Fulbruge III
Clerk
No. 04-40577
Summary Calendar

DONALD ROGER BURR,

Plaintiff-Appellant,

versus

A. D. CASKEY; RAYMOND GONZALES, Assistant Warden; ROBERT
PARKER, Regional IV Director; NORRIS JACKSON, Regional
Assistant to Robert Parker; MARTHA WEAR, Regional Assistant
to Robert Parker; ET AL.,

Defendants-Appellees.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CV-74
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Before DAVIS, SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

Donald Roger Burr, formerly Texas prisoner # 907964, appeals

the dismissal of his 42 U.S.C. § 1983 complaint as malicious

and frivolous. In his complaint, Burr asserted that the

defendants: (1) were deliberately indifferent to his medical

needs; (2) failed to protect him from assault; (3) subjected him

to unconstitutional conditions of confinement; (4) retaliated

against him and interfered with legal mail; (5) failed to provide

*
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this opinion should not be published and is not precedent except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.
 No. 04-40577
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medically necessary meals; and (6) denied him access to the

courts. Burr later added additional claims, including a claim

that he was being held beyond the expiration of his sentence.

On appeal, Burr argues that the district court erred by

dismissing his entire complaint without allowing him to submit

evidence to support his claims against certain defendants named

in a later motion to supplement. Burr also has submitted two

supplemental briefs in which he states he will provide this court

with “examples and reasons” to show that his supplemental claims

were not frivolous. These motions are DENIED. We also conclude

that the district court did not abuse its discretion in denying

Burr’s motion to supplement; Burr’s motion to supplement failed

to describe the nature of his claims against these new

defendants. See Lowrey v. Texas A&M Univ. Sys., 117 F.3d 242,

245 (5th Cir. 1997); FED. R. CIV. P. 7(b)(1) (motions must “state

with particularity the grounds therefor”).

Burr next argues that the district court erred by dismissing

his complaint without an evidentiary hearing. A district court

may dismiss a complaint without a hearing if it determines that a

complaint would be frivolous even if further factually developed.

See Eason v. Thaler, 14 F.3d 8, 10 (5th Cir. 1994). The district

court gave Burr several opportunities to further develop his

claims, including holding a telephonic hearing and by allowing

several amendments to his complaint. We conclude that the
 No. 04-40577
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district court did not abuse its discretion by failing to also

order an evidentiary hearing.

Burr requests that this court review his entire complaint

and grant relief on any meritorious claims. We “review only

those issues presented to us; we do not craft new issues or

otherwise search for them in the record”. United States v.

Brace, 145 F.3d 247, 255 (5th Cir. 1988) (en banc).

Burr argues that the district court erred by considering

his prior litigation history in concluding that he was a

“recreational” litigator and that the instant complaint was

malicious. Burr offers no specific argument attacking the

district court’s conclusion of frivolousness. Because the

district court’s conclusion that the complaint was frivolous

provides an alternative basis for dismissal, we decline to

address this issue.

Burr also argues that the order by which District Judge

Hinojosa was recused and the case was reassigned to District

Judge Crane was invalid; as a result, Burr argues that any

subsequent order signed by Judge Crane was invalid. Burr’s

argument is based on an error in the style of the recusal order.

This error was at most a clerical error which did not render the

recusal order invalid; Rule 25(d)(1) of the Federal Rules of

Civil Procedure provides that following the substitution of a

public officer, “any misnomer [in the party name] not affecting

the substantial rights of the parties shall be disregarded.”
 No. 04-40577
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Burr also argues that the district court showed favoritism

by striking his pleadings for violating a local rule of the

Southern District of Texas. The only specific instance discussed

on appeal involved the striking of his objections to the recusal

order; the district court struck Burr’s pleading for failing to

comply with a local rule that required submission of a proposed

order. Burr asserts that a proposed order was not required

because he was only filing objections. However, this pleading

also requested various forms of relief, such as the dismissal of

all improperly styled orders and permission to amend his request

to recuse the magistrate judge. We conclude that the district

court did not abuse its discretion by striking this pleading.

Finally, Burr argues that the district court erred by not

granting a default judgment against the defendants. A default

judgment is a “drastic remedy, not favored by the Federal Rules

and resorted to by courts only in extreme situations.” Sun Bank

of Ocala v. Pelican Homestead and Savings Ass’n, 874 F.2d 274,

276 (5th Cir. 1989) (footnote omitted). A party may seek a

default judgment if an adverse party has failed “to plead or

otherwise defend.” FED. R. CIV. P. 55(a). In the instant case,

because the Attorney General of Texas responded to the court’s

orders and defended against Burr’s complaint, the district court

did not abuse its discretion by declining to order a default

judgment.

ALL OUTSTANDING MOTIONS DENIED; AFFIRMED.