* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30008 & 08-30010

Summary Calendar

CALVIN HICKERSON, SR

Plaintiff-Appellant

v.

MR ROWLAND CHRISTIAN, Director U.S. Department of Veterans 

Affairs; JAMES NICHOLSON, Secretary Department of Veterans 

Affairs; DANIEL COOPER, Under Secretary of Benefits 

Department of Veterans Affairs; BOARD OF VETERANS APPEALS 

DIRECTOR, Department of Veterans Affairs; APPEALS MANAGEMENT

CENTER, (APC) Department of Veterans Affairs Board of Veterans Appeals;

UNITED STATES COURT OF APPEALS FOR THE VETERANS CLAIMS;

JOHN CHURCH, Director Veterans Affairs Medical Center, Department of

Veterans Affairs

Defendants-Appellees

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:05-CV-02749

Before WIENER, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

United States Court of Appeals

Fifth Circuit

F I L E D

June 24, 2008

Charles R. Fulbruge III

Clerk
No. 08-30008 & 08-30010

1 The court also ordered that Appellant submit a money order for $45 due to insufficient

funds for a previously submitted check.

2

Appellant Calvin Hickerson, Sr., appeals the district court’s dismissal of

his suit for failure to prosecute. Finding no abuse of discretion, we AFFIRM.

On July 6, 2005, Hickerson filed pro se a complaint alleging a personal

injury claim against the Director of the United States Department of Veterans

Affairs and others affiliated with Veterans Affairs. He claimed that he was

improperly denied “veterans compensation benefits.” Hickerson also filed an

application for leave to proceed in forma pauperis, which the district court

denied. On July 21, the district court ordered that Hickerson must submit the

$250 filing fee by money order within 10 days.1 Five months later on December

22, the district court dismissed the case, ordering the clerk to refuse any

pleadings until the filing fees were paid. More than a year and a half later, on

July 13, 2007, Hickerson paid the fees. Three days later, Hickerson filed a

motion to amend his complaint, which the magistrate judge denied on August

24.

On October 25, the district court set the case for docket call on November

14, stating that “the case will be DISMISSED upon failure of [Hickerson] to

report the status thereof or in the absence of good cause shown why the case

should remain on the docket.” After the docket call hearing was held, the

district court found no good cause was shown and dismissed the suit for failure

to prosecute without prejudice. Hickerson filed a motion for reconsideration,

which the district court denied. Hickerson now appeals.

Hickerson’s briefs do not address the district court’s dismissal for failure

to prosecute. He therefore waives appeal of this claim. See Yohey v. Collins, 985

F.2d 222, 225 (5th Cir. 1993) (explaining thatissues not briefed are abandoned);

see also Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748

(5th Cir. 1987) (noting that general arguments are insufficient to preserve issues
No. 08-30008 & 08-30010

3

for appeal and that this court need not construct arguments or theories for pro

se appellants).

In any event, our independent review of the record indicates the district

court’s judgment should be affirmed. This Court reviews the dismissal of an

action for failure to prosecute for an abuse of discretion. See Berry v.

Cigna/RSI-Cigna, 975 F.2d 1188, 1191 (5th Cir. 1992); FED.R.CIV.P. 41(b). A

district court may sua sponte dismiss an action for failure to prosecute under

Rule 41(b). McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988). 

Rule 4(m) of the Federal Rules of Civil Procedure provides that if a

plaintiff does not serve a defendant within 120 days after the complaint is filed,

the court “shall dismiss the action without prejudice.” There is no indication in

the record that Hickerson served the defendants. Hickerson therefore has not

shown thatthe district court abused its discretion in dismissing the suit without

prejudice. 

Here, however, the statute of limitations “prevents or arguably may

prevent” additional litigation, and thus, the applicable standard of review is the

one used for dismissals with prejudice. Boazman v. Economics Laboratory, Inc.,

537 F.2d 210, 213 (5th Cir. 1976). A district court’s discretion to dismiss a suit

under Rule 41(b) is narrower if the statute of limitations would bar refiling the

suit. Berry, 975 F.2d at 1191. Nonetheless, in light of Hickerson’s failure to

serve the defendants prior to the running of the statute of limitations, our

precedent indicates that the district court did not abuse its discretion in

dismissing the action for failure to prosecute. See Veazey v. Young’s Yacht Sale

and Service, Inc., 644 F.2d 475, 478-79 (5th Cir. 1981) (holding that the district

court did not abuse its discretion in dismissing with prejudice for failure to

prosecute based on plaintiff’s failure to serve until immediately prior to the

running of the statute of imitations). 

The district court’s judgment is AFFIRMED.