Torns v. State of Mississippi Department of Corrections , 262 F. App'x 638 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 25, 2008
No. 05-61143 Charles R. Fulbruge III
Summary Calendar Clerk
CHARLES TORNS, JR.
Plaintiff-Appellant
v.
STATE OF MISSISSIPPI DEPARTMENT OF CORRECTIONS; KIRK
FORDICE, Governor for Mississippi; JAMES V ANDERSON, Commissioner of
Mississippi Department of Corrections; WALTER BOOKER, Superintendent for
Mississippi State Penitentiary; RICHARD PAUL PENNINGTON, Director,
Attorney for Mississippi Department of Corrections ILAP; LISA MCGRAW,
Paralegal for Mississippi Department of Corrections ILAP; JESSIE TRIBUNE,
Technician for Mississippi Department of Corrections ILAP; KAREN
CUMMINGS, Technician for Mississippi Department of Corrections ILAP;
JIMMY MELTON, Unit Administrator for Mississippi Department of
Corrections Unit 29F; OLIVER JONES, Captain of Security for Unit 29;
HENDERSON THOMAS, Lieutenant, Unit Administrator for Mississippi
Department of Corrections Unit 32D; JEFFREY HUNTER, CO for Mississippi
Department of Corrections Unit 32; DR. JOHN BEARRY
Defendants-Appellees
-----------------------------------
No. 05-61143
CHARLES TORNS, JR
Plaintiff - Appellant
v.
STATE OF MISSISSIPPI DEPARTMENT OF CORRECTIONS; RICHARD P
PENNINGTON, Director for Mississippi Department of Correction Inmates
Legal Assistance Program; LAURA HOPSON, Technician for Mississippi
Department of Corrections Inmates Legal Assistance Program; PENNY
WALKER, Officer for Unit 30C
Defendants-Appellees
Appeals from the United States District Court
for the Northern District of Mississippi
USDC No. 4:00-CV-85
USDC No. 4:01-CV-296
Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
Charles Torns, Jr., Mississippi prisoner # 32205, appeals the district
court’s dismissal of his consolidated 42 U.S.C. § 1983 actions for failure to
comply with an order of the court and for failure to prosecute. He argues that
the district court’s dismissal should be vacated because he has not engaged in
dilatory conduct and because the district court did not consider lesser sanctions.
A district court may sua sponte dismiss an action for failure to prosecute
or to comply with any order. FED. R. CIV. P. 41(b); McCullough v. Lynaugh,
835 F.2d 1126, 1127 (5th Cir. 1988). The scope of the district court’s discretion
is narrower when the Rule 41(b) dismissal is with prejudice or when a statute
of limitations would bar reprosecution of a suit dismissed under Rule 41(b)
*
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.
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No. 05-61143
without prejudice. Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir.
1992). In Torns’s case, although the district court’s dismissal was without
prejudice, the dismissal may have effectively been with prejudice due to the
three-year statute of limitations. See James by James v. Sadler, 909 F.2d 834,
836 (5th Cir. 1990); MISS. CODE ANN. § 15-1-49.
Where the limitations period “prevents or arguably may present” further
litigation, the standard of review should be the same as is used when reviewing
a dismissal with prejudice. Boazman v. Economics Laboratory, Inc., 537 F.2d
210, 212-13 (5th Cir. 1976). This court will affirm dismissals with prejudice for
failure to prosecute only when there is a clear record of delay or contumacious
conduct by the plaintiff and the district 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,
975 F.2d at 1191.
There is not a clear record of purposeful delay or contumacious conduct by
Torns. Although Torns has delayed the progress of the litigation with several
requests for extensions and the filing of interlocutory appeals, the district court’s
order of dismissal cites only one instance in which Torns failed to comply with
an order. “Generally, where a plaintiff has failed only to comply with a few court
orders or rules, [this court has] held that the district court abused its discretion
in dismissing the suit with prejudice.” Id. at 1192 & n.6. Also, the district court
did not determine that lesser sanctions would not prompt diligent prosecution,
and the district court did not employ lesser sanctions that proved to be futile.
See id. at 1192 & n.7. Finally, none of the usual aggravating factors appear to
be present. See Sealed Appellant v. Sealed Appellee, 452 F.3d 415, 418 (5th Cir.
2006).
Accordingly, the district court’s dismissal was an abuse of discretion. The
district court’s judgment is hereby vacated and case is remanded for further
proceedings.
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No. 05-61143
Torns has requested reconsideration of the denial of his motion to strike
the appellees’ brief. He has moved for an order compelling the defendants to
produce and include in the record certain documents. He requests that the court
issue an injunction and order the Mississippi Department of Corrections
(MDOC) to return his typewriter and related accessories. Torns also requests
the appointment of a “special United States Prosecutor” to investigate alleged
wrongdoing by various MDOC officials and by this court. Torns’s motions are
denied. See Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982).
VACATED AND REMANDED; MOTIONS DENIED.
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