Day v. Amazon
CourtCourt of Appeals for the Fifth Circuit
Date FiledOctober 9, 2026
Docket26-10155
StatusUnpublished
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Full Opinion
Case: 26-10155 Document: 39-1 Page: 1 Date Filed: 10/09/2026
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 26-10155 October 9, 2026
Summary Calendar
Thomas B. Plunkett, III
____________ Clerk
Trellis Kyle Day,
Plaintiff—Appellant,
versus
Amazon.com Services, L.L.C.,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:24-CV-512
______________________________
Before Haynes, Graves, and Ramirez, Circuit Judges.
Per Curiam: *
Trellis Kyle Day, proceeding pro se and in forma pauperis, appeals from
the district court’s denying his Fed. R. Civ. P. 60(b) motion for relief from
judgment. Because he appeals only within the 30-day deadline for his Rule
60(b) motion, our court does not address his contentions regarding the Rule
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 26-10155
12(b)(6) dismissal. He abandons his Rule 60(b) contention as a result of
inadequate briefing.
I
Day initially filed this action against Amazon.com Services, L.L.C.
(Amazon), contending it discriminated against him by failing to
accommodate his disability and approve a leave of absence. Amazon moved
to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Although the district court
stated Amazon “raised several potentially meritorious reasons as to why
some or all of Plaintiff’s claims against it should be dismissed[,]” it afforded
Day an opportunity to amend his complaint considering his pro se status.
Day timely filed an amended complaint, contending employment
discrimination under the Vietnam Era Veterans’ Readjustment Assistance
Act (VEVRAA) and the Americans with Disabilities Act of 1990 (ADA),
failure to accommodate under the ADA, further allegations under the ADA,
and failure to send a copy of Amazon’s motion to dismiss. Amazon once again
moved to dismiss pursuant to Rule 12(b)(6). A magistrate judge issued
findings, conclusions, and a recommendation (FCR), recommending Day’s
action be dismissed. Day filed objections to the FCR. The district court
adopted the FCR, granted Amazon’s motion, and dismissed Day’s action
with prejudice. Day did not appeal.
Nearly one year later, Day moved for relief from judgment pursuant
to Fed. R. Civ. P. 60(b)(1), (2), (3), and (6). The district court denied the
motion. Day timely appealed. In his initial brief, Day raises five contentions
challenging the district court’s dismissing his amended complaint. He
contends the court: improperly dismissed his amended complaint pursuant
to Rule 12(b)(6); failed to liberally construe his pro se pleadings; improperly
resolved disputed factual matters and drew inferences against him at the
pleading stage; overlooked allegations and evidence in his amended
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complaint and objections to the FCR; and improperly and prematurely
dismissed his action with prejudice before discovery. Finally, Day also
contends the district court abused its discretion in denying his Rule 60(b)
motion.
II
We do not have jurisdiction to consider Day’s contentions regarding
the Rule 12(b)(6) dismissal. “In a civil case . . . the notice of appeal . . . must
be filed with the district clerk within 30 days after entry of the judgment or
order appealed from.” Fed. R. App. P. 4(a)(1)(A). Moreover, “an appeal
from the denial of Rule 60(b) relief does not bring up the underlying
judgment for review.” Williams v. Chater, 87 F.3d 702, 705 (5th Cir. 1996).
A Rule 60(b) motion filed after 28 days from the underlying judgment does
not extend the time to appeal that judgment. Fed. R. App. P.
4(a)(4)(A)(vi) (extension of time to appeal only if Rule 60 motion is filed
within time allowed for Rule 59 motion); Fed. R. Civ. P. 59(b), (e) (28-
day deadline).
Day did not appeal the district court’s dismissing his amended
complaint with prejudice within 30 days. Because his Rule 60(b) motion was
filed nearly one year later, it did not extend the time to appeal the dismissal.
Thus, his timely appeal from the denial of Rule 60(b) relief does not bring the
underlying dismissal before this court. Day even concedes in his reply brief
“the underlying judgment is not before the Court for direct review.”
Accordingly, we do not have jurisdiction to consider Day’s first five
contentions, each of which challenge the dismissal of his amended complaint.
See Bowles v. Russell, 551 U.S. 205, 214 (2007) (“[T]he timely filing of a notice
of appeal in a civil case is a jurisdictional requirement.”).
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III
We do have jurisdiction to consider Day’s contention regarding the
district court’s denial of his Rule 60(b) motion. We review the denial for
abuse of discretion. Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984,
997 (5th Cir. 2001); Silvercreek Mgmt., Inc. v. Banc of Am. Sec., LLC, 534 F.3d
469, 472 (5th Cir. 2008). “It is not enough that the granting or relief might
have been permissible, or even warranted—denial must have been so
unwarranted as to constitute an abuse of discretion.” Seven Elves, Inc. v.
Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981) (citing Fackelman v. Bell, 564 F.2d
734, 736 (5th Cir. 1977)).
An appellant’s brief must contain his “contentions and the reasons for
them, with citations to the authorities and parts of the record on which the
appellant relies.” Fed. R. App. P. 28(a)(8)(A). “Although we liberally
construe briefs of pro se litigants and apply less stringent standards to parties
proceeding pro se than to parties represented by counsel, pro se parties must
still brief the issues and reasonably comply with the standards of Rule 28.”
Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995); see also Toole v. Peak, 361
F. App’x 621 (5th Cir. 2010) (“[A] pro se appellant still must actually argue
something that is susceptible of liberal construction.”). Conclusory
assertions, without supporting argument or authority, are insufficient to
preserve an issue for appellate review. See Smith v. Giddings, Tex., 486 F.
App’x 420, 421 (5th Cir. 2012) (conclusory assertions with no case authority
or analysis are insufficient even for pro se litigants); Burke v. Ocwen Loan
Servicing, L.L.C., 855 F. App’x 180, 185–86 nn.3–4 (5th Cir. 2021) (same).
An appellant abandons an issue by failing to adequately brief it. Yohey v.
Collins, 985 F.2d 222, 224–25 (5th Cir. 1993); Green v. State Bar of Tex., 27
F.3d 1083, 1089 (5th Cir. 1994).
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In his brief, Day asserts the district court abused its discretion in
denying Rule 60(b) relief because he “identified overlooked allegations,
procedural concerns, disputed factual matters, and additional issues
warranting reconsideration through the Rule 60(b) motion.” He contends
the denial “compounded the underlying dismissal errors and constituted an
abuse of discretion under the circumstances presented.” Beyond these
conclusory assertions and a citation to his Rule 60(b) motion, Day develops
no argument explaining how the district court abused its discretion. He does
not identify which of the four Rule 60(b) grounds invoked before the district
court warrants appellate relief, apply the requirements of any of those
provisions to the present circumstances of his action, or cite authority
supporting relief under Rule 60(b). His citation to his Rule 60(b) motion does
not substitute for briefing those arguments on appeal nor does it explain how
the district court’s denying those arguments constituted an abuse of
discretion.
Even liberally construing the Rule 60(b) section of Day’s initial brief,
he fails to demonstrate entitlement to relief under any provision of Rule
60(b). Because he fails to adequately brief his challenge, the only issue
properly before this court is abandoned. See Yohey, 985 F.2d at 224–25.
Accordingly, Day fails to show the district court abused its discretion.
For these reasons, the district court’s denial of Rule 60(b) relief is
AFFIRMED.
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