Treadaway v. Stephens ( 1996 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-30792
Summary Calendar
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ERIC TREADAWAY,
Plaintiff-Appellant,
versus
JACK STEPHENS,
Defendant-Appellee.
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Appeal from the United States District Court for the
Eastern District of Louisiana
(94-CV-3973-R)
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March 14 1996
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Eric Treadaway, a Louisiana state prisoner, appeals the
dismissal of his civil rights complaint for failure to prosecute.
Finding that the district court erred in dismissing the suit with
prejudice, we reverse and remand.
A district court's dismissal of a complaint with prejudice may
be affirmed only if (1) there is a clear record of delay or
contumacious conduct by the plaintiff, and (2) either the district
*
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opinion should not be published and is not precedent except under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.
1
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 v.
CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992). A clear
record of delay is found where there have been "significant periods
of total inactivity." Morris v. Ocean Systems, 730 F.2d 248, 252
(5th Cir. 1984).
The district court made no express findings on the efficacy of
lesser sanctions for Treadaway's failure to comply with the
magistrate judge's orders. Further, there is not a clear record of
delay in this case. Treadaway did fail to comply with the order to
file the pretrial documents and the order to show cause why the
suit should not be dismissed for failure to prosecute.
Nevertheless, in general, "where a plaintiff has failed only to
comply with a few court orders or rules, we have held that the
district court abused its discretion in dismissing the suit with
prejudice." Berry, 975 F.2d at 1191 n.6.
Moreover, Treadaway did later respond, asserting that he had
been placed in isolation for disciplinary reasons and that he was
not allowed any incoming or outgoing mail during that time.1
Treadaway's conduct does not appear sufficiently egregious to
warrant dismissal of his complaint with prejudice, rendering the
district court's dismissal under the circumstances of this case an
abuse of discretion. We REVERSE and REMAND for further
1
Additionally, Treadaway filed objections to the magistrate
judge's report and recommendation, arguing that he could not comply
with the court's order of February 8 until after discovery had been
completed. He asserted that he had so informed the court by
letter. The letter, however, is not in the record.
proceedings.
3