Filed: Apr. 23, 1996
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FIFTH CIRCUIT _ No. 95-20880 (Summary Calendar) _ MICHAEL BOHANNAN, Plaintiff-Appellant, versus TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; JAMES COLLINS; WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; SHERRY BROWN; FRANK HOKE; BRUCE AUGUST; JESSE R ROLAN, Defendants-Appellees. _ Appeal from the United States District Court For the Southern District of Texas (CA-H-95-1435) _ April 5, 1996 Before HIGGINBOTHAM,
Summary: UNITED STATES COURT OF APPEALS FIFTH CIRCUIT _ No. 95-20880 (Summary Calendar) _ MICHAEL BOHANNAN, Plaintiff-Appellant, versus TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; JAMES COLLINS; WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; SHERRY BROWN; FRANK HOKE; BRUCE AUGUST; JESSE R ROLAN, Defendants-Appellees. _ Appeal from the United States District Court For the Southern District of Texas (CA-H-95-1435) _ April 5, 1996 Before HIGGINBOTHAM, D..
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UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_______________
No. 95-20880
(Summary Calendar)
_______________
MICHAEL BOHANNAN,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION;
JAMES COLLINS; WAYNE SCOTT,
DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL
DIVISION; SHERRY BROWN; FRANK HOKE;
BRUCE AUGUST; JESSE R ROLAN,
Defendants-Appellees.
_______________________________________________
Appeal from the United States District Court
For the Southern District of Texas
(CA-H-95-1435)
_______________________________________________
April 5, 1996
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Plaintiff Michael Bohannan appeals the district court's
dismissal with prejudice of his pro se and in forma pauperis § 1983
civil rights claim. We vacate the district court’s dismissal and
remand.
*
Pursuant to Local Rule 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4.
I
Following the revocation of his mandatory supervised release,
Bohannan was incarcerated at the Texas Department of Criminal
Justice's San Saba facility. Bohannan brought two petitions for
writs of habeas corpus, both of which were denied. Citing the San
Saba facility's inadequate legal resources, Bohannan filed a pro se
and in forma pauperis civil rights complaint, pursuant to 42 U.S.C.
§ 1983, alleging that he had been denied meaningful access to the
courts while preparing his habeas petitions. The magistrate judge
ordered Bohannan to furnish a more definite statement of the facts
underlying his claim. After Bohannan responded, the magistrate
judge issued a second order for a more definite statement, and
stated that Bohannan's failure to respond within thirty days "may
result in dismissal" of his suit. That same day, Bohannan filed a
notice of change of address that referenced his new mailing address
in Beaumont, Texas. According to a docket sheet entry dated one
week later, the second order for a more definite statement was
returned "undeliverable" and was "re-mailed to the address in
file." After thirty two days without receiving a response from
Bohannan, the district court entered an order dismissing Bohannan's
§ 1983 claim with prejudice.1 Bohannan then filed a motion for
relief from the district court's order, claiming that his failure
1
The district court's order of dismissal does not state whether the
suit is dismissed with or without prejudice. However, unless an involuntary
order of dismissal specifies that it is without prejudice, the dismissal
"operates as an adjudication upon the merits." FED. R. CIV. P. 41(b); Callip v.
Harris County Child Welfare Dept., 757 F.2d 1513, 1519 (5th Cir. 1985).
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to respond was due to "excusable neglect." The district court
denied his motion. Bohannan filed a timely notice of appeal.
II
The district court dismissed Bohannan's action because he
failed to respond to the second order for a more definite statement
within the prescribed time. Rule 41(b) authorizes a district court
to dismiss sua sponte an action for failure to prosecute. FED. R.
CIV. P. 41(b). We review a Rule 41(b) dismissal with prejudice for
abuse of discretion. Berry v. Cigna/RSI-Cigna, 975 F.2d 1188,
1190-91 (5th Cir. 1992). This Court has previously noted that
dismissal with prejudice for failure to prosecute is an extreme and
harsh sanction.
Id. Dismissal with prejudice is appropriate only
when there is a clear record of delay or contumacious conduct by
the plaintiff, and the district court has expressly determined that
lesser sanctions would not serve the best interests of justice.
Id. at 1191. The intentional delay should be longer than just a
few months and must be characterized by "significant periods of
inactivity." McNeal v. B.H. Papasan,
842 F.2d 787, 791 (5th Cir.
1988) (internal quotation marks omitted); see also
Burden, 644 F.2d
at 505 (finding an abuse of discretion where the plaintiff's
failure to comply with the court order was merely negligent and not
intentional).2
2
We also examine the record for the presence of the following
aggravating factors: (1) delay attributable directly to the plaintiff, rather
than his attorney; (2) actual prejudice to the defendant; and (3) delay caused
by intentional conduct. Berry, 975 F.2d at 1191.
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Having reviewed the record, we find no clear evidence of delay
or contumacious conduct. Only thirty-two days elapsed from the
date the second order for a more definite statement was entered to
the date of dismissal. Until that time, Bohannan had diligently
pursued his claim, complying in a timely manner with the court's
initial order for a more definite statement. Bohannan notified the
district court of his new address prior to the second order being
remailed. We are unable to determine from the record whether
Bohannan received the second order or whether it was even sent to
the correct address. However, even if we assume that Bohannan did
receive the second order, there is no evidence in the record that
he intended to delay the proceedings. Compare Burden v. Yates, 644
F.2d 503, 504-05 (5th Cir. 1981) (finding no clear record of delay
or contumacious conduct even though plaintiff failed to file three
documents within court-imposed deadlines) with Callip v. Harris
County Child Welfare Dept.,
757 F.2d 1513, 1521 (5th Cir. 1985)
(finding a clear record of delay and contumacious conduct after
plaintiff violated nine deadlines imposed by court orders or rules
of procedure).3 Moreover, the record does not establish that the
district court expressly determined whether lesser sanctions, such
as a fine or dismissal without prejudice, would be sufficient to
encourage diligent prosecution in this case. See
Callip, 757 F.2d
at 1521 (holding that dismissal with prejudice is not appropriate
unless the district court expressly considered alternative
3
There is also no evidence in the record that the delay prejudiced the
defendants in this case.
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sanctions). We therefore conclude that the district court abused
its discretion in dismissing Bohannan's § 1983 suit with
prejudice.4
III
For the foregoing reasons, we VACATE the district court's
dismissal and REMAND for further proceedings.
4
Bohannan also appeals from the district court's denial of his motion
for relief from the court's dismissal. Because we find that the district court
abused its discretion in dismissing his § 1983 suit, we do not need to reach this
claim.
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