Hack v. Department of Housing & Urban Development ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 25, 2006
Charles R. Fulbruge III
Clerk
No. 05-10990
Summary Calendar
LINDA HACK,
Plaintiff-Appellant,
versus
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; FORT WORTH REGION -
HOUSING AND URBAN DEVELOPMENT; FORT WORTH OFFICE OF FAIR HOUSING
AND EQUAL OPPORTUNITY; DALLAS COUNTY COMMISSIONERS COURT; TEXAS
DEPARTMENT OF HEALTH AND HUMAN SERVICES - HOUSING DIVISION -
DALLAS; GORDON DUNCAN; ERIK COTTON; EVELYN COTTON; PATSY WEAVER;
PAUL JASIN; NANCY BOURLIER; RON WILLIAMS; MARTA; UNKNOWN OWNER;
LAKEWOOD GARDENS APARTMENTS; HOMELOCATOR FOR MOVE TO LAKEWOOD
GARDENS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CV-2752
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Linda Hack seeks leave to proceed in forma pauperis (IFP) on
appeal. By moving for IFP, Hack is challenging the district
court’s certification that IFP status should not be granted on
appeal because her appeal from the dismissal of her 42 U.S.C.
*
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this opinion should not be published and is not precedent except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. 05-10990
-2-
§ 1983 suit is not taken in good faith. See Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997).
Hack argues that the district court abused its discretion in
dismissing her suit for failure to prosecute. See FED. R. CIV. P.
41(b). The district court’s order does not indicate whether the
judgment was with or without prejudice; nevertheless, since the
order does not indicate that the dismissal is without prejudice,
it is deemed an adjudication on the merits. See Callip v. Harris
County Child Welfare Dept., 757 F.2d 1513, 1519 (5th Cir. 1985).
This court has established an exacting standard of review
when a Rule 41(b) dismissal is with prejudice. Berry v.
CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992). “A
dismissal with prejudice is appropriate only if the failure to
comply with the court order was the result of purposeful delay or
contumaciousness and the record reflects that the district court
employed lesser sanctions before dismissing the action.” Long v.
Simmons, 77 F.3d 878, 880 (5th Cir. 1996).
There is not a clear record of purposeful delay or
contumaciousness on the part of Hack in this case. The
magistrate judge ordered Hack to answer a questionnaire within 30
days of its receipt, and within 30 days of its receipt, Hack
filed a Motion to Quash the questionnaire, asserting that she did
not have the necessary documents to present her case and that she
needed the assistance of counsel to answer the questionnaire.
She also provided a “summary” of her claim and asked the
No. 05-10990
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magistrate judge to accept that as her answer to the
questionnaire. The magistrate judge did not warn Hack that, if
she did not answer the questionnaire, her suit would be
dismissed, and the magistrate judge did not consider lesser
sanctions before recommending the dismissal of her suit.
Accordingly, the district court’s dismissal of Hack’s suit
with prejudice for failure to prosecute was an abuse of
discretion. See Long, 77 F.3d at 880. Hack’s motion for leave
to proceed on appeal IFP is therefore GRANTED. Because further
briefing is not required, the district court’s judgment is
VACATED and the case is REMANDED for further proceedings. Hack’s
motion for appointment of counsel is DENIED as unnecessary.