Greenough v. Gray

Case: 22-40190 Document: 00516682576 Page: 1 Date Filed: 03/20/2023

United States Court of Appeals for the Fifth Circuit

United States Court of Appeals

Fifth Circuit FILED

No. 22-40190 March 20, 2023

Summary Calendar

Lyle W. Cayce

Clerk Randall T. Greenough,

Plaintiff—Appellant, versus

Sharilla Gray,

Defendant—Appellee.

Appeal from the United States District Court for the Eastern District of Texas USDC No. 9:21-CV-75

Before Wiener, Elrod, and Engelhardt, Circuit Judges.

Per Curiam:*

Randall T. Greenough, an inmate confined at the Polunsky Unit of the Texas Department of Criminal Justice, Correctional Institutions Division, appeals the district court’s denial of his motion for default judgment and dismissal of his complaint for failure to state a claim, under Federal Rule of Civil Procedure 12(b)(6).

Case: 22-40190 Document: 00516682576 Page: 2 Date Filed: 03/20/2023

No. 22-40190

We review a district court’s denial of entry of default judgment for abuse of discretion. Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001); see Trout Point Lodge, Ltd. v. Handshoe, 729 F.3d 481, 491 (5th Cir. 2013). We review a district court’s order on a motion to dismiss for failure to state a claim de novo. Christiana Tr. v. Riddle, 911 F.3d 799, 802 (5th Cir. 2018). Greenough argues that he is entitled to entry of default judgment because Gray filed her answer out of time—forty-one days after the district court issued an order to answer or otherwise plead to the plaintiff’s complaint, rather than the required forty. However, as the district court correctly found, Gray did comply with the order. She timely filed a motion to dismiss forty days after the order to answer was sent. See FED. R. CIV. P. 5(b)(2)(E) (service complete when filed or sent by electronic means, unless filer or sender learns that it did not reach the person to be served). The district court did not err in denying Greenough’s motion for entry of default judgment.

Greenough’s brief fails to raise any argument challenging the district court’s dismissal of his complaint for failure to state a claim. He has therefore abandoned any challenge to the district court’s dismissal. Sissom v. Univ. of Texas High Sch., 927 F.3d 343, 349 (5th Cir. 2019) (citing Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (Although we liberally construe the briefs of pro se appellants, even pro se appellants must brief their arguments to preserve them).

Accordingly, the district court’s judgment is AFFIRMED. It is ordered that Appellant’s related motions for judicial notice are DENIED.