UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-20771
Summary Calendar
EDUARDO M. BENAVIDES,
Plaintiff-Appellant,
VERSUS
JACK B. PURSLEY and JAMES (JIM) LYNAUGH,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas
(CA-H-91-1971)
(September 25, 1995)
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:1
Eduardo Benavides, a Texas Department of Criminal Justice
inmate proceeding in forma pauperis filed a § 1983 civil rights
complaint. Following a Spears hearing, at which Benavides
abandoned all claims except his claim of retaliation resulting from
the confiscation of his personal property including legal
materials, the district court dismissed his claim as frivolous
Local Rule 47.5 provides: “The publication of opinions that have
no precedential value and merely decide particular cases on the
basis of well-settled principles of law imposes needless expense on
the public and burdens on the legal profession.” Pursuant to that
Rule, the Court has determined that this opinion should not be
published.
under § 1915(d). Benavides moved for reconsideration which was
denied by another judge of the district court to whom the case had
been reassigned. Benavides then moved for reconsideration of the
denial of his reconsideration motion. It was likewise denied by
the second judge. Benavides appeals the denial of his second
motion to reconsider. We affirm.
Appellant’s motion was timely under Rule 60(b). Harcon Barge
Co. v. D&G Boat Rentals, 784 F.2d 665, 667 (5th Cir.) (en banc),
cert. denied, 479 U.S. 930 (1986). We review using the abuse of
discretion standard. Carimi v. Royal Carribean Cruise Line, Inc.,
959 F.2d 1344, 1345 (5th Cir. 1992).
Relying on Federal Rule of Civil Procedures 63, Benavides
argues that the second district judge was without authority to rule
on his motion because it was the first district judge who dismissed
his suit. We disagree. Federal Rule of Civil Procedure 63
concerns only the inability of a judge to continue a trial or
hearing that is in progress. It has nothing to do with the
transfer of cases from the docket of one district judge to another.
Benavides’ property was confiscated but it was returned to him
within thirty days. He made no showing of a permanent deprivation
therefore the district court’s decision to deny Rule 60(b) relief
on this basis was not an abuse of discretion. The dismissal under
1915(d) was therefore also appropriate.
The same is true of Benavides’ contention that the temporary
confiscation of his legal materials interfered with the prosecution
of a malpractice claim he had brought against his attorney and with
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his habeas petition. Appellant has not shown any specific
prejudice resulting from the confiscation and without such a
showing he is unable to establish that Rule 60(b) relief was
warranted.
Appellant next contends that the district court erred when it
did not specifically address his contention that § 1915(d) is
unconstitutional because it treats indigents differently from non-
indigents. In Neitzke v. Williams, 490 U.S. 319 (1989) the Supreme
Court considered § 1915(d) and noted that it was designed to ensure
that indigent litigants have meaningful access to the federal
courts, and that the judiciary was left with the task of “giving
content to § 1915(d)’s definite objectives.” We find nothing in
this record to support the claim of unconstitutionality. While
indigents may indeed be treated differently than non-indigents, the
indigents are given an advantage in the prosecution of their
claims.
Finally, Benavides argues that the district court erred in not
allowing him to amend his pleadings. The district court did,
however, conduct a Spears hearing to allow him to augment his
pleadings and the failure to permit further amendment thereafter is
no abuse of discretion.
AFFIRMED.
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