Lathum v. Lopez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50146
Summary Calendar
MICHAEL LATHUM,
Plaintiff-Appellant,
versus
P. LOPEZ; R. SUTHERLAND,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. P-96-CV-59
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August 7, 1997
Before JOLLY, BENAVIDES and PARKER, Cirucit Judges.
PER CURIAM:*
Michael Lathum, Texas state prisoner #634529, appeals from
the district court’s dismissal of his civil rights complaint for
his failure to comply with a court order. The district court’s
memorandum opinion states that the dismissal was without
prejudice, but the court’s final judgment reflects that the
dismissal was with prejudice. A dismissal with prejudice is
inappropriate because there is no clear record of delay or
contumacious conduct by Lathum nor is there a showing in the
*
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that this opinion should not be published and is not precedent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. 97-50146
-2-
record that the district court considered or employed lesser
sanctions. See Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1190-91
(5th Cir. 1992). If the dismissal was without prejudice,
appellate review is impossible because, without a copy of
Lathum’s complaint, the court is unable to determine whether his
claims are barred by the two-year limitations period, and, thus,
were effectively dismissed with prejudice. See McNeal v.
Papasan, 842 F.2d 787, 793 n.1 (5th Cir. 1988). Additionally, a
review of the record shows that Lathum did submit financial
documents to the district court. Accordingly, the judgment of
the district court is VACATED and the case REMANDED for further
proceedings.