United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 30, 2007
Charles R. Fulbruge III
Clerk
No. 06-30495
Summary Calendar
RENODE COLLINS,
Plaintiff-Appellant,
versus
RICHARD L. STALDER, Secretary of Corrections; BURL CAIN,
Warden; LOUISIANA STATE PENITENTIARY; CURLY ALFRED,
Correctional Officer at Louisiana State Penitentiary; HEALTH
CARE PROVIDER, #71; B. JOHNSON; HEALTH CARE PROVIDER, #17;
HEALTH CARE PROVIDER, #66; JOHN DOE, Doctor,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:06-CV-163
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Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Renode Collins, Louisiana prisoner # 313898, proceeding pro
se and in forma pauperis, appeals the district court’s dismissal
of his 42 U.S.C. § 1983 complaint.
On March 15, 2006, the district court issued an order
indicating that Collins’s pleadings were deficient, that Collins
needed to amend his pleadings to correct the deficiencies, and
that failure to amend within 15 days would result in dismissal.
*
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this opinion should not be published and is not precedent except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. 06-30495
-2-
On April 13, 2006, the district court observed that Collins had
failed to amend his pleadings and dismissed the proceeding,
without prejudice, for failure of Collins to correct the
deficiencies. Collins argues, inter alia, that he did not
receive the deficiency notice and the district court erred when
it dismissed his complaint.
A district court may sua sponte dismiss an action for
failure to prosecute or to comply with any order. FED. R. CIV.
P. 41(b); McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir.
1988). The scope of the district court’s discretion is narrower
when the Rule 41(b) dismissal is with prejudice or when a statute
of limitations would bar re-prosecution of a suit dismissed under
Rule 41(b) without prejudice. Berry v. CIGNA/RSI-CIGNA, 975 F.2d
1188, 1191 (5th Cir. 1992). In Collins’s case, although the
district court dismissed Collins’s suit without prejudice, the
dismissal may have effectively been with prejudice due to the
one-year statute of limitations. See Jacobsen v. Osborne, 133
F.3d 315, 319 (5th Cir. 1998); LA. CIV. CODE ANN. art. 3492.
Where the limitations period “prevents or arguably may
present” further litigation, the standard of review should be the
same as is used when reviewing a dismissal with prejudice.
Boazman v. Economics Laboratory, Inc., 537 F.2d 210, 212-13 (5th
Cir. 1976). This court will affirm dismissals with prejudice for
failure to prosecute only when there is a clear record of delay
or contumacious conduct by the plaintiff and the district court
No. 06-30495
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has expressly determined that lesser sanctions would not prompt
diligent prosecution, or the record shows that the district court
employed lesser sanctions that proved to be futile. Berry, 975
F.2d at 1191.
There is not a clear record of purposeful delay or
contumacious conduct by Collins. The district court’s order that
Collins supplement the record was issued on March 17, 2006, and
the district court dismissed the proceeding on April 13, 2006.
There are no other orders of the district court in the record,
and therefore there were no other instances where Collins did not
comply with a court order. See Berry, 975 F.2d at 1191 and n.5.
As Collins argues, an attachment to his brief indicates that
Collins may not have received the March 17, 2006, order. Also,
the district court did not determine that lesser sanctions would
not prompt diligent prosecution, and the district court did not
employ lesser sanctions that proved to be futile. See Berry, 975
F.2d at 1192 and n.7. Finally, none of the usual aggravating
factors appear to be present. See Sealed Appellant v. Sealed
Appellee, 452 F.3d 415, 418 (5th Cir. 2006).
Accordingly, the district court’s dismissal of Collins’s
suit was an abuse of discretion. The district court’s judgment
is VACATED and the case is REMANDED for further proceedings.