[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 13, 2007
No. 07-10595 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00186-CV-DHB-1
ANA M. ABREU-VELEZ,
Plaintiff-Appellant,
versus
BOARD OF REGENTS OF THE
UNIVERSITY SYSTEM OF GEORGIA,
MEDICAL COLLEGE OF GEORGIA,
DENNIS MARCUS, M.D.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(September 13, 2007)
Before TJOFLAT, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Appellant is a physician. In her complaint in this case against the Board of
Regents of the University System of Georgia, the Medical College of Georgia, and
Dr. Dennis Marcus (collectively “the Board”), she alleged that the Board pressured
her into quitting her job in retaliation for her exercise of First Amendment rights
and seeks relief under 42 U.S.C. § 1983.1 She also claimed that the Board violated
her rights under the Georgia Whistleblower Act, O.C.G.A. § 45-1-4. After the
Board answered the complaint and discovery commenced, appellant’s attorney
moved the district court to withdraw, and the court granted the motion. In its
order, the court directed appellant to notify the court within five days whether she
wished to proceed pro se or needed an extension of time to hire substitute counsel.
Appellant failed to respond to the court’s order, so on January 29, 2007, the court
dismissed her case without prejudice for failure to prosecute. Appellant,
proceeding pro se, now appeals. The question before us is whether the district
court abused its discretion in dismissing appellant’s case. Goforth v. Owens, 766
1
As alleged in the complaint, Dr. Marcus, as head of the Department of Ophthalmology
of the Medical College of Georgia, hired appellant in August 2004 as his research assistant and
study coordinator. She objected to the manner in which Dr. Marcus planned to conduct a clinical
study on humans that involved radiation and invasive surgery to be performed in an operating
room. She expressed her objection, which concerned whether Marcus’s plan was safe for those
who would be exposed to the radiation, in a November 19, 2004 email to Dr. Marcus and others
who were to be involved in the clinical study. After receiving the email, Dr. Marcus terminated
appellant’s employment effective November 22, 2004.
2
F.2d 1533, 1535 (11th Cir. 1985).
The limitations period for claims brought under 42 U.S.C. § 1983 is the
personal injury limitations period of the forum state. Rozar v. Mullis, 85 F.3d 556,
561 (11th Cir. 1996). Personal injury claims in Georgia must be filed “within two
years after the right of action accrues.” Id. at 560-61; O.C.G.A. § 9-3-33. “The
general federal rule is that the statute of limitations does not begin to run until the
facts which would support a cause of action are apparent or should be apparent to a
person with a reasonably prudent regard for his rights.” Rozar, 85 F.3d at 561-62
(internal quotation omitted). Here, appellant’s alleged injury resulted from her
termination, which occurred on November 22, 2004. Thus, assuming that no
tolling occurred, the limitations period for appellant’s § 1983 claim expired
effective November 22, 2006.
Where a dismissal “has the effect of precluding [plaintiff] from refiling [her]
case due to the running of the statute of limitations. . . . [t]he dismissal [is]
tantamount to a dismissal with prejudice.” Justice v. United States, 6 F.3d 1474,
1482 n.15 (11th Cir. 1993); see also Burden v. Yates, 644 F.2d 503, 505 (5th Cir.
Unit B May 1981) (“where . . . . the statute of limitations prevents or arguably may
prevent a party from refiling his case after it has been dismissed, we fail to see how
a dismissal without prejudice is any less severe a sanction than a dismissal with
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prejudice.”) (internal quotation and citation omitted). “[W]here the dismissal is
without prejudice, but the applicable statute of limitations probably bars further
litigation, the standard of review of the District Court's dismissal should be the
same as is used when reviewing a dismissal with prejudice.” Boazman v.
Economics Laboratory, Inc., 537 F.2d 210, 213 (5th Cir. 1976).
“Dismissal with prejudice, whether on motion or sua sponte, is an extreme
sanction that may be properly imposed only when: ‘(1) a party engages in a clear
pattern of delay or willful contempt (contumacious conduct); and (2) the district
court specifically finds that lesser sanctions would not suffice.’” Betty K
Agencies, LTD v. M/V Monada, 432 F.3d 1333, 1338 (internal citations omitted).
A dismissal with prejudice is a "drastic remedy to be used only in those situations
where a lesser sanction would not better serve the interests of justice." Justice, 6
F.3d at 1482 n.15 (quotations omitted).
Dismissal with prejudice is “improper unless and until the district court
finds a clear record of delay or willful misconduct and that lesser sanctions are
inadequate to correct such conduct.” Betty K. Agencies, 432 F.3d at 1339.
Moreover, “findings satisfying both prongs of [the] standard are essential before
dismissal with prejudice is appropriate,” and district courts must make these
findings “because the sanction of dismissal with prejudice is so unsparing . . . . and
4
we strive to afford a litigant his or her day in court, if possible.” Id.
A district court’s consideration of lesser sanctions “need not be explicit.”
Gratton v. Great Am. Communications., 178 F.3d 1373, 1374 (11th Cir. 1999).
Nevertheless, while this court has “occasionally inferred such a finding, as where
lesser sanctions would have ‘greatly prejudiced’ defendants, it has ‘never
suggested that the district court need not make that finding . . . .’” Kilgo v. Ricks,
983 F.2d 189, 193 (11th Cir. 1993). “Mere delay will not suffice; ‘[a] finding of
such extreme circumstances necessary to support the sanction of dismissal must, at
a minimum, be based on evidence of willful delay; simple negligence does not
warrant dismissal.’”). Kilgo, 983 F.2d at 192-3 (citations omitted).
In this case, the district court failed to make findings sufficient to enable us
to assess whether it abused its discretion. On its face, the court’s order stated that
the dismissal was without prejudice. Assuming, however, that the two-year
limitations period has expired, the dismissal was effectively with prejudice. The
court did not make a finding that appellant’s failure to comply with its order was “a
clear pattern of delay or willful contempt.” See Betty K Agencies, 432 F.3d at
1338 (internal citations omitted). Nor did the district court explicitly consider
whether a lesser sanction would prejudice the defendants. See Kilgo, 983 F.2d at
193. We therefore vacate the court’s decision and remand the case for further
5
proceedings not inconsistent herewith.2
VACATED and REMANDED.
2
In her brief, appellant raises issues not presented to the district court. Hence, we do not
consider them.
6