Henderson v. Mason, et al

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
December 12, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-40066
Conference Calendar
GERALD DEWEY HENDERSON, I,
Plaintiff-Appellant,
versus
JOHNNY MASON, Dentist; TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION; UTMB; SHERA L. AVANT,
Mailroom; POLUNSKY UNIT MAILROOM STAFF; MRS. HASTINGS, Polunsky
Parole Worker; MRS. PRIMROSE; MR. MCKEE, Law Library Worker; MRS.
PUTMAN,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:05-CV-104
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Before KING, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Gerald Dewey Henderson, I, Texas inmate # 1105393, appeals
the dismissal of his action under 42 U.S.C. § 1983. He also
moves for the appointment of counsel. Because Henderson’s appeal
presents no “exceptional circumstances,” his motion for
appointment of counsel is denied. See Ulmer v. Chancellor, 691
F.2d 209, 212 (5th Cir. 1982).

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No. 06-40066
-2-
Henderson’s complaint named several defendants, including
the mailroom staff at his prison unit. The district court
dismissed the action without prejudice because Henderson failed
to comply with the magistrate judge’s order to file an amended
pleading containing a short and plain statement setting forth his
claims.
Henderson asserts that he prepared an amended pleading and
presented it for mailing. He contends that the mailroom staff
destroyed the pleading in retaliation for being named as
defendants. Henderson argues that his amended pleading should be
considered filed under the prison mailbox rule. See Spotville v.
Cain, 149 F.3d 374, 377-78 (5th Cir. 1998).
Henderson has not shown that the district court abused its
discretion in dismissing his action without prejudice. See
McNeal v. Papasan, 842 F.2d 787, 789-90 (5th Cir. 1988).
Accordingly, the judgment of the district court is affirmed.
AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED.

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