Opinion
No. 05-61143, Summary Calendar.
January 25, 2008.
Charles Torns, Jr., Leakesville, MS, pro se.
John Lewis Clay, Office of the Attorney General for the State of Mississippi, Leonard Charlton Vincent, Jackson, MS, Mississippi Department of Corrections Staff Attorney's Office, Parchman, MS, for Defendants-Appellees.
Appeals from the United States District Court for the Northern District of Mississippi, USDC Nos. 4:00-CV-85, 4:01-CV-296.
Before KING, DAVIS and CLEMENT, Circuit Judges.
Charles Toms, Jr., Mississippi prisoner #32205, appeals the district court's dismissal of his consolidated 42 U.S.C. § 1983 actions for failure to comply with an order of the court and for failure to prosecute. He argues that the district court's dismissal should be vacated because he has not engaged in dilatory conduct and because the district court did not consider lesser sanctions.
A district court may sua sponte dismiss an action for failure to prosecute or to comply with any order. FED. R. CIV. P. 41(b); McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988). The scope of the district court's discretion is narrower when the Rule 41(b) dismissal is with prejudice or when a statute of limitations would bar reprosecution of a suit dismissed under Rule 41(b) without prejudice. Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992). In Torns's case, although the district court's dismissal was without prejudice, the dismissal may have effectively been with prejudice due to the three-year statute of limitations. See James by James v. Sadler, 909 F.2d 834, 836 (5th Cir. 1990); MISS. CODE ANN. § 15-1-49.
Where the limitations period "prevents or arguably may present" further litigation, the standard of review should be the same as is used when reviewing a dismissal with prejudice. Boazman v. Economics Laboratory, Inc., 537 F.2d 210, 212-13 (5th Cir. 1976). This court will affirm dismissals with prejudice for failure to prosecute 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 prompt diligent prosecution, or the record shows that the district court employed lesser sanctions that proved to be futile. Berry, 975 F.2d at 1191.
There is not a clear record of purposeful delay or contumacious conduct by Torns. Although Torns has delayed the progress of the litigation with several requests for extensions and the filing of interlocutory appeals, the district court's order of dismissal cites only one instance in which Torns failed to comply with an order. "Generally, where a plaintiff has failed only to comply with a few court orders or rules, [this court has] held that the district court abused its discretion in dismissing the suit with prejudice." Id. at 1192 n. 6. Also, the district court did not determine that lesser sanctions would not prompt diligent prosecution, and the district court did not employ lesser sanctions that proved to be futile. See id. at 1192 n. 7. Finally, none of the usual aggravating factors appear to be present. See Sealed Appellant v. Sealed Appellee, 452 F.3d 415, 418 (5th Cir. 2006).
Accordingly, the district court's dismissal was an abuse of discretion. The district court's judgment is hereby vacated and case is remanded for further proceedings.
Torns has requested reconsideration of the denial of his motion to strike the appellees' brief. He has moved for an order compelling the defendants to produce and include in the record certain documents. He requests that the court issue an injunction and order the Mississippi Department of Corrections (MDOC) to return his typewriter and related accessories. Torns also requests the appointment of a "special United States Prosecutor" to investigate alleged wrongdoing by various MDOC officials and by this court. Torns's motions are denied. See Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982).
VACATED AND REMANDED; MOTIONS DENIED.