Duncan v. Smith ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-60422
Conference Calendar
__________________
WENDELL A. DUNCAN,
Plaintiff-Appellant,
versus
VICTOR SMITH, PERCY MILES,
SILVESTER HOWARD,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 95-CV-96-S-O
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(October 18, 1995)
Before POLITZ, Chief Judge, and REAVLEY and SMITH, Circuit Judges.
PER CURIAM:*
Wendell A. Duncan appeals the district court's dismissal
without prejudice of his civil rights action for failure to
prosecute.
A district court may sua sponte dismiss an action for
failure to prosecute or to comply with a court order. McCullough
v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988). Such a
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-60422
-2-
dismissal is reviewed for an abuse of discretion. Id. However,
the scope of the district court's discretion is narrow when the
Rule 41(b) dismissal is with prejudice or when a statute of
limitations would bar reprosecution of a suit dismissed without
prejudice under Rule 41(b). Berry v. CIGNA/RSI-CIGNA, 975 F.2d
1188, 1190-91 (5th Cir. 1992). Here, the district court
specified that the dismissal was without prejudice.
Because the dismissal by the district court was without
prejudice and no statute of limitations bars the refiling of his
claim, Duncan has not suffered prejudicial harm resulting from
the dismissal. See McCullough, 835 F.2d at 1127. "In such
circumstances trial courts must be allowed leeway in the
difficult task of keeping their dockets moving." Id. The
dismissal without prejudice of Duncan's complaint does not
constitute an abuse of discretion.
AFFIRMED.
Duncan's "Motion to Show the Court How the Lower Courts are
Aiding the Defendants" is DENIED.