[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 29, 2008
No. 08-10478 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00955-CV-ORL-18-KRS
DERICK SMITH,
Plaintiff-Appellant,
versus
PENNY L. BURNSIDE,
KIM DICKEY,
ANGELA FRYER,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 29, 2008)
Before BIRCH, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
This is Derick Smith’s pro se appeal of the district court’s order striking his
re-filed complaint in this 42 U.S.C. § 1983 civil rights action. After the district
court dismissed his initial complaint without prejudice, a decision that Smith did
not appeal within the time set forth by Federal Rule of Appellate Procedure
4(a)(1)(B), Smith re-filed a complaint in the same case. The district court struck
the re-filed complaint and noted that if Smith wished to pursue his claims he
should file a complaint in the proper venue, the Northern District of Florida. Smith
contends that the district court abused its discretion by striking his re-filed
complaint.1
Whether construed as a denial of leave to file an amended complaint, or as
the denial of a Rule 60(b) motion, we review the district court’s decision to strike
Smith’s re-filed complaint only for an abuse of discretion. See Fla. Evergreen
Foliage v. E.I. DuPont De Nemours and Co., 470 F.3d 1036, 1040 (11th Cir.
2006); Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir. 2001).
The district court did not abuse its discretion by striking the re-filed
complaint. It was not the proper vehicle for attacking a final judgment which was
entered almost four months earlier. Moreover, even if the district court had
1
We cannot consider the arguments Smith raises regarding venue because he did not file
a timely appeal from the district court’s dismissal of his initial complaint. Fed. R. App. P.
4(a)(1)(B); see also Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001).
2
construed Smith’s filing as a Rule 60(b) motion, that motion would have been due
to be denied as Smith’s claim was still barred. See Heck v. Humphrey, 512 U.S.
477, 487, 114 S. Ct. 2364, 2372 (1994).
AFFIRMED.
3