Godaire v. Lomo - Case Law

                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.

                        - - - - - - - - - -
           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. G-96-CV-475
                        - - - - - - - - - -
                           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that this opinion should not be published and is not precedent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.