IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40205
Summary Calendar
RONALD D. WILSON,
Plaintiff-Appellant,
versus
STATE OF TEXAS; TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION; T. WEST, Warden;
C. S. STAPLES, Assistant Warden; JOHN YOUNG;
JOHN PORTER, Lieutenant; JOHN COLLINS, Sergeant;
T. PORTER; GEORGE EDWARDS; JOHN DOE, III, also
known as Fast Black; UNKNOWN PERSON LOCKETT;
JOSEPH TURANO, Captain; VENETRIA HATCHETT,
Lieutenant; JOHN DELGADO; JACK MANGRUM, Building
Captain; CARL PLOCK, Agent for Internal Affairs
Division; CHRISTOPHER NWENE, Building Captain;
DANNY DENMON, Prison Guard; RODNEY GRAVES; ROBERT
ASHWORTH, Prison Guard; STEPHEN DAVIS, Lieutenant;
JAMES SUTTON, Sergeant,
Defendants-Appellees.
--------------------
Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 1:95-CV-999
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August 20, 1999
Before SMITH, BARKSDALE, and WIENER, Circuit Judges.
PER CURIAM:*
*
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that this opinion should not be published and is not precedent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. 98-40205
-2-
Ronald D. Wilson, Texas prisoner # 340757, appeals the
district court’s dismissal of his civil rights complaint pursuant
to FED. R. CIV. P. 41(b) for failure to comply with a court order.
He argues that the magistrate judge’s request for a ten-page
statement of his constitutional claims was unnecessary because
the case had already been set for trial.
A district court may sua sponte dismiss an action for
failure to prosecute or to comply with any court order. FED.
R. CIV. P. 41(b); McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th
Cir. 1988). However, because reprosecution of some of Wilson’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).
Wilson’s appeal is without arguable merit and should be
dismissed as frivolous. See Howard v. King, 707 F.2d 215, 219-20
(5th Cir. 1983). The magistrate judge properly ordered Wilson to
file a more definite statement, and Wilson had been warned that
failure to comply could result in sanctions. Given Wilson’s past
ability to file numerous statements and motions, his failure to
No. 98-40205
-3-
file the statement can be taken as contumaciousness or an attempt
to secure a delay.
This dismissal of a frivolous appeal constitutes one strike
against him for purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 388 (5th Cir. 1996). If two other
district court actions or appeals filed by Wilson are dismissed
as frivolous, he will be barred from bringing a civil action or
appeal as a prisoner proceeding in forma pauperis unless he is
under imminent danger of serious physical injury. See § 1915(g).
Wilson should review any pending appeals to ensure that they do
not raise frivolous issues.
Wilson is also warned that the language used throughout his
appellate briefs, which is highly abusive of the federal court
and its officials, will invite the imposition of sanctions. To
avoid sanctions, Wilson should review his pleadings to ensure
that they do not contain language that is abusive.
Wilson has also filed a motion for leave to file an out-of-
time reply brief. This motion is DENIED.
APPEAL DISMISSED AS FRIVOLOUS. 5TH CIR. R. 42.2. SANCTION
WARNING ISSUED UNDER 28 U.S.C. § 1915(g). MOTION FOR LEAVE TO
FILE REPLY BRIEF OUT-OF-TIME DENIED.