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David Keith v. Warden E. Gutierrez ( 2015 )


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  •      Case: 14-20374      Document: 00513130349         Page: 1    Date Filed: 07/27/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-20374                                   FILED
Summary Calendar                             July 27, 2015
Lyle W. Cayce
Clerk
DAVID EARL KEITH,
Plaintiff-Appellant
v.
WARDEN E. GUTIERREZ; OFFICER C. CARR; P. ASSISTANT MENDEZ,
Defendants-Appellees
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:13-CV-1928
Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
David Earl Keith, Texas prisoner # 1841789, appeals the dismissal of his
    42 U.S.C. § 1983
     complaint under Federal Rule of Civil Procedure 41(b) for
failure to prosecute and to comply with a court order. Keith argues that the
district court erred in dismissing his case.
A district court may sua sponte dismiss an action for failure to prosecute
or obey a court order. FED. R. CIV. P. 41(b); McCullough v. Lynaugh, 835 F.2d
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 14-20374     Document: 00513130349      Page: 2   Date Filed: 07/27/2015
No. 14-20374
1126, 1127 (5th Cir. 1988). Because the court’s order was silent as to whether
the instant dismissal was with prejudice, we deem the dismissal to be with
prejudice. Edwards v. City of Houston,
    78 F.3d 983
    , 994 (5th Cir. 1996).
Though we review the decision for abuse of discretion, the scope of the district
court’s discretion is narrow when the dismissal is with prejudice. Berry v.
CIGNA/RSI-CIGNA,
    975 F.2d 1188
    , 1191 (5th Cir. 1992). We will affirm a
dismissal with prejudice under Rule 41(b) only where there is a clear record of
delay or contumacious conduct by the plaintiff and where the district court has
determined that lesser sanctions were or would be futile. Long v. Simmons,
    77 F.3d 878
    , 880 (5th Cir. 1996).
The district court’s dismissal of Keith’s complaint was based on Keith’s
failure to comply with the district court’s April 30, 2014 order. Noncompliance
with a single court order, however, does not amount to a clear record of delay,
i.e., significant periods of inactivity, or contumacious conduct, “stubborn
resistance to authority.” Berry,
    975 F.2d at 
    1191-92 n.5; McNeal v. Papasan,
    842 F.2d 787
    , 792 (5th Cir. 1988); Holden v. Simpson Paper Co., 48 F. App’x
917, *2 (5th Cir. 2002).    A district court generally may not dismiss with
prejudice if the plaintiff “fail[s] only to comply with a few court orders.” Berry,
    975 F.2d at 
    1192 & n.6. Moreover, there is no discussion in the record of other,
lesser sanctions considered by the court. Accordingly, under the circumstances
described, the dismissal of Keith’s complaint was an abuse of discretion.
Keith additionally asserts on appeal that the district court erred when it
denied his motion for appointment of counsel. To the extent Keith moved the
district court to appoint counsel, he has not shown that the district court
abused its discretion when it failed to appoint counsel. See Baranowski v. Hart,
    486 F.3d 112
    , 126 (5th Cir. 2007); Ulmer v. Chancellor,
    691 F.2d 209
    , 212 (5th
Cir. 1982).
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Case: 14-20374   Document: 00513130349   Page: 3   Date Filed: 07/27/2015
No. 14-20374
The judgment is VACATED, and the case is REMANDED for further
proceedings.
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