IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50065
Summary Calendar
PHILIP SANDOVAL, JR.,
Plaintiff-Appellant,
versus
MR. HOUSTON,
Defendant-Appellee.
- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-96-CV-36
- - - - - - - - - -
November 3, 1997
Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:1
Philip Sandoval, Jr., Texas inmate #600528, appeals the
dismissal of his civil rights complaint for failure to prosecute.
If necessary, this court must sua sponte examine the basis of its
jurisdiction. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987).
Sandoval’s request for a certificate of probable cause is construed
as a timely notice of appeal from the denial of his motion for
reconsideration. See Mosely, 813 F.2d at 660 (quoting Cobb v.
Lewis, 488 F.2d 41, 45 (5th Cir. 1974)); see also Smith v. Barry,
1
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that this opinion should not be published and is not precedent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.
502 U.S. 244, 247-49 (1992) (document that is the functional
equivalent of a notice of appeal required under Fed. R. App. 3 is
sufficient).
The court construed Sandoval’s December 6, 1996, motion as one
for reconsideration but did not designate under which rule of civil
procedure it fell. December 5, 1996, was the last day for Sandoval
to file a timely motion under Fed. R. Civ. P. 59(e). See Fed. R.
Civ. P. 6(a); 59(e). His motion for reconsideration was filed on
December 6, 1996, one day late. Sandoval certified, in compliance
with 28 U.S.C.§ 1746, that he mailed the pleading to counsel of
record on November 30, 1996. Under Houston v. Lack, 487 U.S. 266,
276 (1988), as well as Fed. R. App. P. 4(c), the motion is
construed as a Rule 59(e) motion.
A district court may sua sponte dismiss an action for failure
to comply with any court order. Fed. R. Civ. P. 41(b); McCullough
v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988). A sua sponte
dismissal by the district court is reviewed for abuse of
discretion. Id. In the instant case, the district court did not
specify that the dismissal was without prejudice; therefore, the
dismissal "operates as an adjudication upon the merits," i.e.,
dismissal with prejudice. Rule 41(b). Such a dismissal is "an
extreme sanction" which operates as an adjudication on the merits
and "is to be used only when the plaintiff's conduct has threatened
the integrity of the judicial process [such that] the court [has]
no choice but to deny that plaintiff its benefits." McNeal v.
Papasan, 842 F.2d 787, 790 (5th Cir. 1988)(internal quotation and
citation omitted). Dismissal with prejudice is the ultimate
sanction for a litigant and should be imposed only after full
consideration of the likely effectiveness of less stringent
measures. Hornbuckle v. Arco Oil & Gas Co., 732 F.2d 1233, 1237
(5th Cir. 1984).
A Rule 41(b) dismissal with prejudice should be affirmed if
the "case discloses both (1) a clear record of delay or
contumacious conduct by the plaintiff, and (2) that a lesser
sanction would not better serve the best interests of justice."
McNeal, 842 F.2d at 790. Contumacious conduct is "`stubborn
resistance to authority'" and justifies a dismissal with prejudice.
Id. at 792 (citation omitted).
The instant case does not disclose a clear record of delay or
contumacious conduct by Sandoval. He amended his complaint to
provide the defendant’s full name and address. The court’s
dismissal was not based on Sandoval’s delay but simply on
inactivity over a three-month period. Sandoval effected service on
the defendant, and no activity occurred after August 16, 1996,
probably because the defendant had not yet answered. Thus, the
district court’s dismissal is VACATED and the case REMANDED for
further proceedings.
Sandoval asks this court to appoint counsel for him. Inasmuch
as his lawsuit is not complex and does not present exceptional
circumstances, his motion is DENIED. See Ulmer v. Chancellor, 691
F.2d 209, 212 (5th Cir. 1982).