IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-41035
(Summary Calendar)
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DARRELL E. BALDWIN,
Plaintiff-Appellant,
versus
JIMMY ROLLO, Captain; JAMES MCCORMICK,
Lieutenant; JOHN JACOBS, Sergeant;
JASON JEFFUS, Sergeant; COY PRICE,
COIII; RAYMOND WATKINS, COIII;
ORLANDO JOHNSON, COIII; JOE NELL ROSS, COIII,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
(USDC No. 9:96-CV-251)
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November 24, 1997
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Darrell E. Baldwin, Texas prisoner #491905, appeals the
dismissal of his 42 U.S.C. § 1983 action for failure to comply with
court orders under Fed. R. Civ. P. 41(b). Baldwin does not
specifically raise an issue relating to the basis of the district
court's dismissal under Rule 41(b), other than to state that he
*
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that this opinion should not be published and is not precedent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.
complied with the court’s orders directing him to file a properly
certified in forma pauperis application.
A district court may sua sponte dismiss an action for failure
to prosecute or to comply with any court order. McCullough v.
Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988). Although the
district court dismissed Baldwin’s complaint without prejudice, the
dismissal operates as a dismissal with prejudice because Baldwin
would be barred by the applicable limitations period from filing a
new complaint. See Berry v. GIGNA/RSI-CIGNA, 975 F.2d 1188, 1191
(5th Cir. 1992). Thus, the dismissal is properly analyzed as one
with prejudice.
Baldwin did not object to the report and recommendation of the
magistrate judge. Accordingly, this court’s review is limited to
plain error. Douglass v. United Servs. Auto. Assn, 79 F.3d 1415,
1428-29 (5th Cir. 1996) (en banc).
To prevail on plain-error review, an appellant must show:
“(1) that an error occurred; (2) that the error was plain, which
means clear or obvious; (3) the plain error must affect substantial
rights; and (4) not correcting the error would ‘seriously affect
the fairness, integrity or public reputation of judicial
proceedings.’” Highlands Ins. Co. v. National Union Fire Ins. Co.,
27 F.3d 1027, 1032 (5th Cir. 1994).
Ordinarily this court will affirm a dismissal with prejudice
only "(1) upon a showing of `a clear record of delay or
contumacious conduct by the plaintiff' and (2) when ‘lesser
sanctions would not serve the best interests of justice.'"
2
Sturgeon v. Airborne Freight Corp., 778 F.2d 1154, 1159 (5th Cir.
1985) (emphasis original) (citations omitted). Dismissal with
prejudice is "[t]he ultimate sanction for the 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).
The record does not clearly evince delay or contumacious
conduct on the part of Baldwin, even though he failed to respond,
or to respond adequately, to two different court orders. See
Berry, 975 F.2d at 1191-92 n.6. ("Generally, where a plaintiff has
failed only to comply with a few court orders or rules, we have
held that the district court abused its discretion in dismissing
the suit with prejudice.") Although the district court warned
Baldwin that failure to comply with its orders could result in
dismissal, the record does not reflect that the court considered or
employed any alternative lesser sanction, such as a monetary
sanction, prior to dismissing the suit. Therefore, the district
court's dismissal was plain error. Hornbuckle, 732 F.2d at 1237.
Baldwin also seeks appointment of counsel on appeal. Because
we vacate and remand the case to the district court, the motion for
appointment of counsel on appeal is denied as unnecessary.
ORDER OF DISMISSAL VACATED and REMANDED; MOTION FOR APPOINTMENT OF
COUNSEL DENIED.
3