IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40910
ARNOLD DAVILA,
Plaintiff-Appellant,
v.
KEITH PRICE, Warden, Individually and in his capacity
as Warden; E HIGHTOWER, Individually and in his
official capacity as Unit Classification Committee
Member; “DENNER”, Individually and in her official
capacity as Investigator; “BLACK MAN”, Individually and
in his official capacity; O’REILLY, Warden; “WILLIAMS”,
Individually and in his official capacity; JAMES ANDY
COLLINS,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(G-9-CV-325)
_________________________________________________________________
October 6, 1997
Before KING and JONES, Circuit Judges, and KENDALL,* District
Judge.
PER CURIAM:**
*
District Judge of the Northern District of Texas,
sitting by designation.
**
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that this opinion should not be published and is not precedent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.
Plaintiff-appellant Arnold Davila appeals the district
court’s dismissal of his civil rights complaint for failure to
prosecute pursuant to Federal Rule of Civil Procedure 41(b). We
affirm the judgment of the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1992, Arnold Davila, an inmate at the Darrington Unit of
the Texas Department of Criminal Justice (TDCJ), filed a pro se
and in forma pauperis civil rights complaint against numerous
TDCJ officials pursuant to 42 U.S.C. § 1983. Davila alleged that
TDCJ officials had retaliated against him for filing various
other lawsuits on behalf of himself and other inmates.
In August 1992, the magistrate judge ordered Davila to
submit a more definite statement of the facts concerning his
action and warned Davila that failure to comply with his order
within thirty days might result in dismissal of the action. The
record indicates that Davila filed no pleadings until March 1995,
when he submitted a motion for a writ of mandamus against the
magistrate judge. Although he argued in a general manner that
the magistrate’s consideration of the case was prejudiced, Davila
gave no clear indication that he had or would comply with the
magistrate judge’s order to file a more definite statement. The
bulk of the motion concerned Davila’s allegation that his good-
time credits were not being calculated properly.
2
In December 1995, as a result of Davila’s failure to comply
with his order to file a more definite statement, the magistrate
judge recommended that the district court dismiss Davila’s
complaint without prejudice for failure to prosecute pursuant to
Federal Rule of Civil Procedure 41(b). The magistrate judge
further noted that “a review of the pleadings at this stage
suggests that this case lacks merit and could potentially be
dismissed as frivolous.” Davila objected to the recommendation,
arguing that the magistrate judge was “playing active role of
counsel for the defendants” and “[v]oicing opinions that lack
merit.” Davila further asserted that he had answered the
magistrate judge’s order on September 6, 1992, and he offered to
provide the court with copies of his reply. Moreover, he
insulted the court, suggesting that the magistrate judge was
lying because he had been “bought off” by the defendants.
On August 15, 1996, after conducting a de novo review of the
record, the district court adopted the magistrate judge’s report
and recommendation and dismissed the complaint without prejudice
for want of prosecution. Davila filed a timely notice of appeal
on September 3, 1996, and this court granted Davila leave to
proceed in forma pauperis.
On appeal, Davila contends that the district court abused
its discretion by dismissing his complaint because he was not “at
fault” and because he actually had answered the magistrate
judge’s order for a more definite statement. He argues that the
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dismissal without prejudice of his complaint actually operates as
a dismissal with prejudice because the statute of limitations
prevents him from refiling the suit.
II. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 41(b), a
district court may dismiss sua sponte an action for failure to
prosecute or for failure to comply with any court order.
McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988)
(citing Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962)).
We review a dismissal under Rule 41(b) for abuse of discretion.
Id. In this case, however, the dismissal operates as a dismissal
with prejudice because the statute of limitations has run. Long
v. Simmons, 77 F.3d 878, 880 (5th Cir. 1996). Where the
dismissal operates as a dismissal with prejudice, the district
court should give “full regard [to] the severity of the
sanction,” but abuse of discretion remains the standard of review
that this court applies. Ramsay v. Bailey, 531 F.2d 706, 708
(5th Cir. 1976), cert. denied, 429 U.S. 1107 (1977).
II. DISCUSSION
A significant body of case law exists in this circuit
describing what constitutes an abuse of discretion where a case
is dismissed with prejudice. Such a dismissal is appropriate
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only if there is a “‘“clear record of delay or contumacious
conduct by the plaintiff, . . . , and when lesser sanctions would
not serve the best interests of justice.”’” Callip v. Harris
County Child Welfare Dep’t, 757 F.2d 1513, 1519 (5th Cir. 1985)
(quoting Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir. 1982)
(quoting Pond v. Braniff Airways, Inc., 453 F.2d 347, 349 (5th
Cir. 1972)) (omission in original)). Moreover, we consistently
have required that the “record reflect[] that the district court
employed lesser sanctions before dismissing the action.” Long,
77 F.3d at 880. Lesser sanctions might include “[a]ssessments of
fines, costs, or damages against the plaintiff . . . , . . .
conditional dismissal, dismissal without prejudice, and explicit
warnings.” Callip, 757 F.2d at 1521 (quoting Rogers, 669 F.2d at
322); see also Gist v. Lugo, 165 F.R.D. 474, 478 (E.D. Tex. 1996)
(noting the importance of “clearly warning plaintiff that he
risked dismissal”). Finally, in most cases where a dismissal
with prejudice has been affirmed, we have found that one or more
of three “aggravating factors” were present: “(1) delay
attributable directly to the plaintiff, rather than his attorney;
(2) actual prejudice to the defendant; and (3) delay caused by
intentional conduct.” Callip, 757 F.2d at 1519. Where the
district court has not complied with these requirements, we must
conclude that it abused its discretion in dismissing the action.
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Looking first at the issue of explicit warnings, we note
that Davila was clearly warned that failure to file the more
definite statement could result in dismissal of his case.
Looking next at the issue of alternative sanctions, we
recognize that the majority of the lesser sanctions available to
a district court are unlikely to create the same incentive to
comply in a litigant who proceeds in forma pauperis, and is
therefore essentially judgment proof, than in the average
litigant who pays her own way in court. Cf. Neitzke v. Williams,
490 U.S. 319, 324 (1989) (“[A] litigant whose filing fees and
court costs are assumed by the public, unlike a paying litigant,
lacks an economic incentive to refrain from filing frivolous,
malicious, or repetitive lawsuits.”); Burns v. C/O Glick, 158
F.R.D 354, 356 (E.D. Pa. 1994) (finding dismissal to be the only
appropriate sanction because in forma pauperis plaintiff could
not pay any costs or fees assessed against him). Thus, in a case
such as this, where the majority of alternative sanctions are
likely to be useless, we apply with some leniency and flexibility
the general rule that the district court must consider such
action before dismissing a case.
Turning to the matter of delay, by the time the magistrate
judge recommended the dismissal of Davila’s case, nearly three
years had passed since the issuance of the order for a more
definite statement. A time period of that length with no action
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in a case1 clearly works against Davila. It is a litigant’s
responsibility to ensure that his pleadings are filed with the
court in a proper and timely manner and that the case is kept
moving. We note that here, the sanctions issue is intertwined
with the delay issue. The district court’s judgment dismissed
the case without prejudice, which is one of the lesser sanctions
mentioned in a number of our cases. It is the length of the
delay, chargeable on this record to Davila, that has operated to
turn that dismissal into one with prejudice.
We turn next to Davila’s claim that he objected to the
dismissal, arguing that he had complied with the order and
offering to supply the court with another copy of his more
definite statement. Davila provided no evidence supporting his
assertion.2 The district court did not abuse its discretion in
1
The only communication that the record reveals Davila
to have had with the court between the Order for a More Definite
Statement and the magistrate’s Report and Recommendation is the
aforementioned “Pro-Se Writ of Mandamus,” in which Davila accused
the magistrate judge of “prejudicing” his case and of failing to
act in “good faith.”
2
On appeal, Davila has appended to his brief exhibits which
include (1) a letter, purportedly dated September 6, 1992, to an
unspecified court clerk indicating that Davila had forwarded a
more definite statement; (2) the purported more definite
statement; and (3) a mailroom log indicating that an unidentified
piece of legal mail had been forwarded to the district court on
September 9, 1992. While the documents submitted by Davila
arguably support his claim that he responded to the magistrate
judge’s order, this court ordinarily will not enlarge the record
on appeal to include material not before the district court.
United States v. Flores, 887 F.2d 543, 546 (5th Cir. 1989).
Thus, we do not consider the information appended to the
appellate brief.
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concluding that this was not an adequate response. Davila had
been advised that his case would be dismissed if he failed to
file the more definite statement as ordered, and he had been
further advised that it had not been filed. Rather than simply
offering to supply the court with another copy and attempting to
put the burden on the court to ask for one, Davila should have
tendered the more definite statement and evidence that it had
been sent off for filing. Had he done so, the district court’s
response might well have been different, as might ours.
Finally, we note that it was within the district court’s
discretion to conclude that Davila’s disrespect for the court, as
evidenced by his continued insulting of the court’s integrity
throughout his briefs, constituted contumacious conduct
warranting a dismissal. On this record, we cannot conclude that
the district court’s decision to use the ultimate sanction of
dismissal (with prejudice as it has turned out) constituted an
abuse of discretion.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
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