* 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should not be published and is not precedent except under the limited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.

 

1 Bankruptcy Rule 8006 provides as follows:

Within 10 days after filing the notice of appeal . . . the

appellant shall file with the clerk and serve on the appellee a

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-10197

_______________

In the matter of: Shannon Cavanaugh,

Debtor.

BOB BELL,

Appellant,

VERSUS

CHARLES KENNON,

Appellee.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

(3:96-CV-227-X)

_________________________

October 8, 1997

Before REYNALDO GARZA, SMITH, and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Plaintiff Bob Bell appeals the dismissal, for failure to

designate the record, of his bankruptcy appeal to the district

court.1 Because Bell has not alleged error on the part of the
(...continued)

designation of the items to be included in the record on appeal and a

statement of the issues to be presented.

 

2 In re Pyramid Mobile Homes, Inc., 531 F.2d 743, 744 (5th Cir. 1976); In re

Braniff Airways, 774 F.2d 1303, 1305 (5th Cir. 1985); Martinez v. Johnson, 104 F.3d

769, 771 (5th Cir. 1997).

2

district court, and because we do not believe that court abused its

discretion, we affirm.

I.

We review the dismissal for abuse of discretion.2 Bell

alleges that virtually every act by every participant in the

bankruptcy case, a pro se chapter 13 hearing regarding Shannon

Cavanaugh, and in Bell’s subsequent appeal, was part of a racial

conspiracy. 

According to Bell, he was “illegally summoned to a bankruptcy

hearing,” and “an illegal order was issued” against him, although

he was not a party to the bankruptcy. He claims that in issuing

this order, the bankruptcy court acted “beyond the real [sic] of

the scope of the courts [sic] jurisdictional power.” He alleges

that appellee Charles Kennon and co-counsel Greg Arnove, court

staff attorneys, “are trying to make a name for themselves at the

expense of violating the civil rights and liberties of the

appellant.” He claims that the staff attorneys “have used their

position to impose their racial attitudes and concerns in case that

has nothing to do with jurisdiction; other than the fact that they
3

wanted to teach an innocent black business person a lesson in

racial harassment” and that the bankruptcy judge “allowed a

kangaroo hearing to occur” in a demonstration of a “buddy helping

a buddy.” Finally, he states that “[i]t is fairly obvious to the

appellant that the appellee, the Honorable Harold Abramson was

intent on assisting some of his cronies with a plot to destroy and

[sic] innocent business person who happened to be black.”

Nowhere in his brief does Bell allege error by the district

court, either in law or in fact. Nor does he allege that the

court abused its discretion in dismissing the appeal. Even a

pro se appellant has an obligation to present an argument on the

issues that are raised, although we construe the brief liberally.

By failing to do so, Bell has given us “nothing to review or rule

upon.” Al-Ra’id v. Ingle, 69 F.3d 28, 31 (5th Cir. 1995) (holding

that a pro se appellant waived a retaliation claim by failing to

allege errors by the district court in disposing of the issue).

II.

Even assuming that an active search for error is appropriate,

the pleadings suggest none. Bell does not dispute that he failed

to designate the record. An appellant bears the responsibility of

providing an adequate record on which the court may base its review

of the issues raised on appeal. Pyramid, 531 F.2d at 745. When he

fails to meet this obligation, the district court may, at its
 

3 See also Coats v. Pierre, 890 F.2d 728, 731 (5th Cir. 1989) (“Although we

choose not to dismiss the appeal, the scope of our review is necessarily limited to

reviewing the available transcripts and determining whether the evidence contained

in them is sufficient to raise a jury question.”).

 

4 Guidry v. Bank of La Place, 954 F.2d 278, 281 (5th Cir. 1992); Elliott v.

Foufas, 867 F.2d 877, 881 (5th Cir. 1989); Associated Builders, Inc. v. Alabama

Power Co., 505 F.2d 97, 100 (5th Cir. 1974).

4

discretion, dismiss the suit. In doing so, the court should

consider the prejudicial effect of delay on the appellee and the

bona fides of the appellant. Id.

We cannot say that the district court abused its discretion in

dismissing the suit. Although Bell alleges many legal conclusions

regarding the conduct of Kennon and the bankruptcy judge, he has

alleged no discreet factsSSonly conclusional onesSSto suggest that

his claim is bona fide. Because of the lack of facts and the

continued absence of a record, the district court had no better

option than dismissal. 

On occasion, courts in this circuit have chosen “not [to]

dismiss the appeal . . . but [to] decide those issues which can be

reached on the record before [the court].” Gulf Water Benefaction

Co. v. Public Utility Comm’n, 674 F.2d 462, 466 (5th Cir. 1982).3

Such an option was not available to the district court in this

case, because the complaint alleged legal conclusions and

assertions without supporting facts; such conclusional allegations

cannot present material issues of fact.4

Bell does not allege that he requested leave to correct his

omission by supplying a suitable record. If he had, we would be
 

5 Compare In re SPR Corporation, 45 F.3d 70, 72-73 (4th Cir. 1995); In re

Serra Builders, Inc., 970 F.2d 1309 (4th Cir. 1992) (upholding dismissal where

district court found appellant “negligent”); Nielsen v. Price, 17 F.3d 1276 (10th

Cir. 1994) (upholding dismissal where appellant violated several rules); In re

Fitzsimmons, 920 F.2d 1468 (9th Cir. 1990) (holding that where district court

finds bad faith, it need not consider alternatives to dismissal); and Sierra

Switchboard Co. v. Westinghouse Elec. Corp., 789 F.2d 705 (9th Cir. 1986) (no

abuse of discretion in allowing suit to go forward where violations were fault

of appellant’s attorney) (all applying rule 8001(a)) with In re Harlow Fay, Inc.,

993 F.2d 1351 (8th Cir. 1993) (applying rule 9006(b)(1) and upholding dismissal

where appellant failed to demonstrate excusable neglect).

5

faced with a question already considered by a number of circuits:

whether the consequences of delay in making a filing required by

FED. R. BANKR. P. 8006 should be governed by FED. R. BANKR. P. 8001(a),

which allows the district court to take discretionary action short

of dismissing the appeal, or FED. R. BANKR. P. 9006(b)(1), which

mandates dismissal unless “excusable neglect” can be shown.5

Because Bell made no attempt to file the designation of the record

at any point, however, we need not address the question of untimely

filings. 

Faced with an appellant who had not complied with rule 8006

and expressed no interest in doing so, and supplied with briefs

containing no facts upon which the court could proceed without a

record, the district court had little choice but to dismiss the

appeal. The judgment, accordingly, is AFFIRMED.