Neil v. Johnson ( 2000 )

No. 99-21156
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-21156
USDC No. H-99-CV-2123
GARY NEIL,
Petitioner-Appellant,
versus
GARY L. JOHNSON, Director,
Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
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April 4, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Gary Neil, Texas prisoner # 598523, moves this court for a
certificate of appealability (COA) to challenge the dismissal of
his federal habeas petition for failure to prosecute, pursuant to
Federal Rule of Civil Procedure 41(b). He also moves this court
for leave to proceed in forma pauperis (IFP) on appeal.
To obtain a COA, Neil must make a substantial showing of the
denial of a constitutional right. § 2253(c)(2). When, as here,
the district court’s dismissal is based upon a procedural ground,
*
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that this opinion should not be published and is not precedent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.
No. 99-21156
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the prisoner must first make a credible showing that the district
court erred in dismissing the habeas petition. See Sonnier v.
Johnson, 161 F.3d 941, 943-44 (5th Cir. 1998). Only if the
petitioner succeeds in doing so will we consider whether he has
made a substantial showing of the denial of a constitutional
right on his underlying claims. Id.
The district court dismissed Neil’s habeas petition without
prejudice after Neil omitted to file a traverse to the
respondent’s motion to dismiss that petition as barred by the
Antiterrorism and Effective Death Penalty Act’s (AEDPA’s) one-
year limitations period. Under Rule 41(b), a district court may
dismiss sua sponte an action for failure to prosecute or for
failure to comply with any court order. McCullough v. Lynaugh,
835 F.2d 1126, 1127 (5th Cir. 1988) (citing Link v. Wabash R.R.
Co., 370 U.S. 626, 630-31 (1962)). We review the dismissal of an
action pursuant to Rule 41(b) for an abuse of discretion. See
id.
Although the district court purported to dismiss Neil’s
habeas petition without prejudice, it is unclear whether the
dismissal could trigger the requirements for filing a successive
habeas petition imposed by the AEDPA. See 28 U.S.C.
§ 2244(b)(3)(A) (West 1999). Thus, the dismissal could operate
as though it had been with prejudice despite the district court’s
characterization to the contrary. We will therefore treat the
dismissal as though it had been with prejudice.
A Rule 41(b) dismissal of a plaintiff's action with
prejudice is a severe sanction, to be used only when the
No. 99-21156
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plaintiff's conduct “has threatened the integrity of the judicial
process." Rogers v. Kroger Co., 669 F.2d 317, 321 (5th Cir.
1982). Accordingly, this court has adjured district courts that
such a dismissal is improper unless the record evidences (1) a
clear record of delay or contumacious conduct by the plaintiff,
and (2) that a lesser sanction would not better serve the
interests of justice. McNeal v. Papasan, 842 F.2d 787, 790 (5th
Cir. 1988).
In dismissing Neil’s § 2254 petition, the district court did
not determine whether Neil’s conduct had compromised the
integrity of the judicial process or whether Neil’s failure to
respond to the respondent’s motion to dismiss was motivated by
intransigence. Nor does the record reflect that the district
court considered whether any lesser sanction would have secured
the interests of justice. See Rogers, 669 F.2d at 321; McNeal,
842 F.2d at 790. Without such findings, we cannot ascertain
whether the district court abused its discretion in dismissing
Neil’s § 2254 petition. We therefore GRANT Neil a COA, VACATE
the dismissal of his § 2254 petition, and REMAND this matter to
the district court for further proceedings consistent with this
holding. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir.
1998). Neil’s motion for leave to proceed IFP on appeal is
GRANTED. See Jackson v. Dallas Police Dept., 811 F.2d 260, 261
(5th Cir. 1986).
IFP GRANTED; COA GRANTED; VACATED AND REMANDED.