Alonso vs. Parker, (5th Cir. 1999)

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-51077

Summary Calendar

ANTONIO ALONSO,

Plaintiff-Appellant,

versus

DEBORAH A. PARKER ET AL.,

Defendants,

NATIVIDAD Q. VASQUEZ,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Texas

USDC No. W-96-CV-106

September 27, 1999

Before KING Chief Judge, EMILIO M. GARZA, and STEWART, Circuit

Judges.

PER CURIAM:* Antonio Alonso, TDJC# 462941, appeals the dismissal of his 42 U.S.C. § 1983 action for failure to prosecute. The district court dismissed the case at the beginning of trial because Alonso did not proceed in English. The district court found that Alonso had not given notice that he could not speak English and needed an interpreter. However, Alonso had given notice on December 19, 1996, that he could not speak English when he filed a motion for appointment of counsel, which the district court denied.

Further, on September 19, 1997, approximately two months before trial, Alonso filed a motion requesting an interpreter and renewing his request for appointment of counsel. The district court did not rule on this later motion. Thus, the district court's reasons for dismissing Alonso's claim are not supported by the record. The district court abused its discretion in dismissing Alonso's case. See Clofer v. Perego, 106 F.3d 678, 679 (5th Cir. 1997); Edwards v. City of Houston, 78 F.3d 983, 994 (5th Cir. 1996). Accordingly, the judgment is VACATED and the case is REMANDED.

In addition, Alonso has moved to appoint Corey Baker as his interpreter and, in the alternative, moved for appointment of counsel. These motions are DENIED WITHOUT PREJUDICE to Alonso's refiling such motions in the district court. In light of the foregoing, we need not consider at this time Alonso's argument that the district court erred in not appointing counsel.

VACATED AND REMANDED. ALL OUTSTANDING MOTIONS ARE DENIED.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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