Rice v. Doe ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 8, 2009
No. 08-20381
Summary Calendar Charles R. Fulbruge III
Clerk
SKYLER THOMAS RICE
Plaintiff-Appellant
v.
JOHN DOE 1; JOHN DOE 2; JOHN DOE 3
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:08-CV-468
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Skyler Thomas Rice, federal prisoner # 38736-179, appeals, pro se, the
district court’s dismissal of his complaint arising under Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Rice claims the
district court erred in dismissing his complaint for want of prosecution because
he made every reasonable effort to comply with the court’s request to provide the
names and addresses of the unidentified defendants. Rice asserts the court was
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-20381
aware that he required the court’s intervention to obtain the full names of the
individuals named as defendants in the complaint.
FED. R. CIV. P. 41(b) provides that a district court may dismiss an action
for failure to prosecute or for failure to comply with any court order. Such a
dismissal is reviewed for abuse of discretion. See Long v. Simmons, 77 F.3d 878,
879-80 (5th Cir. 1996).
The district court dismissed Rice’s complaint without prejudice. If the
effect of a dismissal without prejudice prevents or arguably may prevent the
plaintiff from again raising the dismissed claims because of the applicability of
a statute of limitations, the dismissal may operate as a dismissal with prejudice.
Id. at 880. According to Rice, the incident that forms the basis of his complaint
occurred in May 2007; thus, the applicable Texas two-year statute of limitations
has not run, and the dismissal will not operate as a dismissal with prejudice.
See Cooper v. Brookshire, 70 F.3d 377, 380 n.20 (5th Cir. 1995); TEX. CIV. PRAC.
& REM. CODE ANN. § 16.003(a).
Along those lines, a dismissal with prejudice generally will not be
affirmed, where, as here, the record does not reflect purposeful delay or
contumacious conduct on the part of Rice prior to the district court’s 12 April
2008 order (to better identify the defendants; Rice had earlier provided some
identification). See Tello v. Comm’r., 410 F.3d 743, 744 (5th Cir. 2005). Nor does
the record show “the district court employed sanctions that proved to be futile”.
Id. Finally, the district court did not expressly determine “that lesser sanctions
would not prompt diligent prosecution”. Id.
As noted, however, we will affirm a dismissal based on a plaintiff’s failure
to comply with a district court’s order. See Larson v. Scott, 157 F.3d 1030, 1032
(5th Cir. 1998). Rice’s failure to file a response to the district court’s 12 April
order directing Rice to further identify the defendants constituted such a failure.
Moreover, Rice failed to explain his non-compliance in the FED. R. CIV. P. 60(b)
motion invited by the district court. (Although Rice claims he has labored to
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No. 08-20381
discover the names of the defendants, and the prison refuses to provide him the
information, Rice failed to assert this claim specifically to the district court, and
he failed to respond to the district court’s orders.)
In sum, the district court did not abuse its discretion in dismissing Rice’s
complaint for failure to prosecute. Id.
AFFIRMED.
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