Case: 20-20075 Document: 00515916266 Page: 1 Date Filed: 06/28/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 28, 2021
No. 20-20075 Lyle W. Cayce
Clerk
Collins O. Nyabwa,
Plaintiff—Appellant,
versus
United States Department of Defense,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-3438
Before Higginbotham, Smith, and Oldham, Circuit Judges.
Per Curiam:*
Collins O. Nyabwa moves this court for leave to appeal in forma
pauperis (IFP) from the dismissal of a civil action in which Nyabwa sought
relief under the Federal Tort Claims Act and Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). By moving to appeal
IFP, Nyabwa challenges the district court’s certification that his appeal was
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-20075
not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Our inquiry into whether an appeal is taken in good faith “is limited to
whether the appeal involves legal points arguable on their merits (and
therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)
(internal quotation marks and citations omitted).
In his notice of appeal, Nyabwa stated that he was challenging the
denial of his second Federal Rule of Civil Procedure 59(e) motion, which was
successive and is not a valid basis for an appeal. See Charles L.M. v. Ne. Indep.
Sch. Dist., 884 F.2d 869, 870 (5th Cir. 1989). However, we will liberally
construe the requirements of Federal Rule of Appellate Procedure 3 and
construe his notice of appeal as timely challenging the denial of his first Rule
59(e) motion. See United States v. Knowles, 29 F.3d 947, 949 (5th Cir. 1994).
Our review of that denial encompasses the underlying dismissal. See Butts v.
Martin, 877 F.3d 571, 581 (5th Cir. 2017).
The district court dismissed Nyabwa’s complaint after he failed to
make the first two monthly installment payments towards the filing fee as
ordered when his IFP status was granted. Pursuant to Federal Rule of Civil
Procedure 41(b), a district court may dismiss a complaint sua sponte if a
plaintiff fails to follow a court order. Long v. Simmons, 77 F.3d 878, 879 (5th
Cir. 1996). We generally review such a dismissal for abuse of discretion.
McNeal v. Papasan, 842 F.2d 787, 789-90 (5th Cir. 1988). The scope of the
district court’s discretion is narrow when the Rule 41(b) dismissal is with
prejudice or when a statute of limitations would bar re-filing of a suit
dismissed without prejudice under Rule 41(b). See Berry v. CIGNA/RSI-
CIGNA, 975 F.2d 1188, 1190-91 (5th Cir. 1992). When, as here, the dismissal
is silent as to prejudice, it is presumed to be with prejudice. See Nationwide
Mut. Ins. Co. v. Unauthorized Prac. of L. Comm., 283 F.3d 650, 655 n.26 (5th
Cir. 2002). Because a dismissal with prejudice is an extreme sanction, it “is
appropriate only where there is a showing of (a) a clear record of delay or
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No. 20-20075
contumacious conduct by the plaintiff, and (b) where lesser sanctions would
not serve the best interests of justice.” Gates v. Strain, 885 F.3d 874, 883
(5th Cir. 2018) (internal quotation marks and citation omitted).
Our review of the record—as well as Nyabwa’s lengthy litigation
history, prior dismissals of his complaints for failure to make payments as
ordered, and sanction warnings from various courts including ours—
supports a finding that Nyabwa’s conduct was contumacious. See McNeal,
842 F.2d at 790. The district court explicitly considered this history when
denying Nyabwa’s first Rule 59(e) motion. The district court also explicitly
warned Nyabwa that his failure to comply with the monthly payment plan
could result in dismissal. See Rogers v. Kroger Co., 669 F.2d 317, 321 (5th Cir.
1982) (noting such a warning constitutes a lesser sanction than dismissal).
And even if the district court had not imposed a warning or considered lesser
sanctions, Nyabwa’s contumacious litigation conduct shows that a lesser
sanction would have been futile. See Sealed Appellant v. Sealed Appellee, 452
F.3d 415, 420 (5th Cir. 2006) (noting consideration of lesser sanctions is not
always necessary).
Accordingly, we AFFIRM the district court’s dismissal of the
complaint. Nyabwa’s motion to proceed IFP on appeal is DENIED as moot.
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