Filed: Aug. 24, 2004
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 24, 2004 Charles R. Fulbruge III No. 02-61063 Clerk Summary Calendar EZELL WASH; ET AL., Plaintiffs, EZELL WASH; KENNETH DENNIS; DESMOND EARL PHILLIPS; BOBBY CALDWELL; JIMMY POWELL; ROBERT PRICE; GLENDALE SONES; RICHARD SIMS, JR.; JAMES REED, Plaintiffs-Appellants, versus ROBERT JOHNSON, Commissioner; JAMES ANDERSON; WALTER BOOKER; W. L. HOLMAN; ROBERT ARMSTRONG; GENE CROCKER
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 24, 2004 Charles R. Fulbruge III No. 02-61063 Clerk Summary Calendar EZELL WASH; ET AL., Plaintiffs, EZELL WASH; KENNETH DENNIS; DESMOND EARL PHILLIPS; BOBBY CALDWELL; JIMMY POWELL; ROBERT PRICE; GLENDALE SONES; RICHARD SIMS, JR.; JAMES REED, Plaintiffs-Appellants, versus ROBERT JOHNSON, Commissioner; JAMES ANDERSON; WALTER BOOKER; W. L. HOLMAN; ROBERT ARMSTRONG; GENE CROCKER;..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 24, 2004
Charles R. Fulbruge III
No. 02-61063 Clerk
Summary Calendar
EZELL WASH; ET AL.,
Plaintiffs,
EZELL WASH; KENNETH DENNIS; DESMOND EARL PHILLIPS;
BOBBY CALDWELL; JIMMY POWELL; ROBERT PRICE; GLENDALE SONES;
RICHARD SIMS, JR.; JAMES REED,
Plaintiffs-Appellants,
versus
ROBERT JOHNSON, Commissioner; JAMES ANDERSON; WALTER BOOKER;
W. L. HOLMAN; ROBERT ARMSTRONG; GENE CROCKER; EARL JACKSON;
JESSIE STREETER; CHRISTOPHER EPPS; LARRY KEYS; PAMELY LEE;
CHARLES THOMAS; GLENN ADAMS; WILLIE WALKER; CASE MANAGER JACKSON;
SAM WEBB; JACQILYN MAXWELL; MAUD IRBY; JOE CONNERS; FRANK
GRAMMAR; LARRY HARDY; JOHN DOE(S), Liability Surities/Bonding
Companies of All Defendants,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:00-CV-315-P-D
Before HIGGINBOTHAM, JONES, and BARKSDALE, Circuit Judges.
PER CURIAM:*
The appellants, pro se plaintiffs in a civil rights suit
filed under 42 U.S.C. § 1983, appeal the dismissal of their suit
*
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opinion should not be published and is not precedent except under the limited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.
under FED. R. CIV. P. 41(b) for failure to comply with an order of
the court. The appellants’ argument that the appellees’ brief
should be stricken is without merit inasmuch as the brief was
mailed prior to the deadline and conformed with FED. R. APP. P. 28.
Rule 41(b) authorizes the sua sponte dismissal with
prejudice of an action for the failure of the plaintiff to
prosecute. Rule 41(b) dismissals are reviewed for abuse of
discretion. Dorsey v. Scott Wetzel Servs., 84 F.3d 170, 171 (5th
Cir. 1996). Rule 41(b) dismissals, however, are affirmed “only
upon a showing of a clear record of delay or contumacious conduct
by the plaintiff, . . . and where lesser sanctions would not serve
the best interest of justice.”
Id.
The instant case does not reveal a clear record of delay
or contumacious conduct on the part of the pro se plaintiffs. Soon
after the district court stayed discovery pending resolution of the
defendants’ qualified immunity defenses, the plaintiffs attempted
to address those defenses by pointing to their fact-specific
complaint and amended complaint. Additionally, prior to the
court’s January 4, 2002, deadline, the plaintiffs sought to declare
the defendants’ third, fifth, and sixth immunity defenses
inapplicable as a matter of law. In that filing, the plaintiffs
explained that the only remaining affirmative defense was the
defendants’ claim to qualified immunity under federal law and that
they needed access to their legal files, which the defendants had
denied, to prepare such a response.
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The plaintiffs’ June 19, 2002, request for more time was
also filed prior to the district court’s July 3, 2002, deadline.
The plaintiffs iterated that they needed their legal files to
comply with the court’s order to file a reply to the defendants’
immunity defenses. Thus, although the plaintiffs did not file the
reply ordered by the district court by the deadlines that the
district court had extended to them, they filed pleadings prior to
the deadlines explaining why they were unable to do so.
As noted above, this court affirms Rule 41(b) dismissals
only when lesser sanctions would not serve the best interest of
justice. Dorsey, 84 F.3d at 171. The district court in the
instant case, as a lesser sanction, could have simply denied the
plaintiffs’ request for an extension of time to file the reply
ordered by the district court pursuant to Schultea v. Wood,
47 F.3d
1427, 1434 (5th Cir. 1995)(en banc), without dismissing the
plaintiffs’ complaint.
Additionally, in determining whether to affirm a
Rule 41(b) dismissal, this court looks to the degree of actual
prejudice to the defendant arising from the plaintiff’s failure to
comply with a court order. Rogers v. Kroger Co., 669 F.2d 317, 320
& n.5 (5th Cir. 1982); see also Pardee v. Moses,
605 F.2d 865, 867
(5th Cir. 1979). In this case, the plaintiffs’ complaint and
amended complaints are fact-specific as to how they believe they
were harmed by the defendants’ conduct; whether the pleadings meet
the heightened pleading requirements that Schultea sought to
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enforce, and whether they will suffice to respond to the district
court’s order, have yet to be decided.
In light of the plaintiffs’ efforts to address the
district court’s order to file a Schultea reply, the availability
of a lesser sanction, and the lack of prejudice sustained by the
defendants, the district court’s Rule 41(b) dismissal is VACATED,
and the case is REMANDED to the district court for further
proceedings.
The motion of Gary Moore asking this court to reconsider
and vacate the dismissal of his appeal for his failure to pay the
filing fee in full is DENIED.
VACATED and REMANDED; MOTION DENIED.
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