IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-41132
Summary Calendar
RAYMOND PETER GODAIRE,
Plaintiff-Appellant,
versus
ADJETEY LOMO,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-96-CV-475
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June 24, 1998
Before DUHE’, DeMOSS and DENNIS, Circuit Judges.
PER CURIAM:*
Raymond Peter Godaire (TDCJ # 613522) appeals the district
court’s dismissal of his civil rights complaint pursuant to Fed.
R. Civ. P. 41(b) for failure to prosecute. He argues that he was
unable to comply with the magistrate judge’s order to answer
interrogatories because his legal materials were destroyed.
A district court may sua sponte dismiss an action for
failure to prosecute or to comply with any court order. Fed.
*
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that this opinion should not be published and is not precedent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. 97-41132
-2-
R. Civ. P. 41(b); McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th
Cir. 1988). However, because reprosecution of some of Godaire’s
claims would be barred by the relevant statute of limitations,
the scope of the district court’s discretion to dismiss the
complaint is narrow. See Berry v. CIGNA/RSI-CIGNA, 975 F.2d
1188, 1190-91 (5th Cir. 1992). Such a dismissal “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).
Although the magistrate judge warned Godaire that failure to
answer the interrogatories might result in dismissal of the
complaint, the record does not reflect that the district court
employed lesser sanctions before dismissing the action. Further,
although Godaire’s justification for not answering the
interrogatories was perhaps a poor one, there is no indication
that Godaire’s failure to comply with the magistrate judge’s
order was to secure a delay or out of contumaciousness. Thus,
the district court’s dismissal for failure to prosecute was an
abuse of discretion. Insofar as the court also dismissed the
complaint on the rationale that it was frivolous, the record is
not sufficiently developed to affirm based on that alternative
ground. See Eason v. Thaler, 14 F.3d 8, 9-10 (5th Cir. 1994).
VACATED AND REMANDED.