Case: 21-40602 Document: 00516339513 Page: 1 Date Filed: 06/01/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 21-40602 June 1, 2022
Summary Calendar
Lyle W. Cayce
Clerk
Lisa Marie Searcy,
Plaintiff—Appellant,
versus
Texas Attorney General Warren Kenneth Paxton, Jr.;
Helen Truscott, Attorney; Jennifer Burnett, Attorney; Jana
Wheeler, Attorney; Mark Aronowitz, Attorney; et al,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:21-cv-113
Before Barksdale, Costa, and Engelhardt, Circuit Judges.
Per Curiam:*
Lisa Marie Searcy, Galveston County Jail inmate # 347183, filed an
action under 42 U.S.C. § 1983 against, inter alia, Texas Attorney General
*
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opinion should not be published and is not precedent except under the limited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.
Case: 21-40602 Document: 00516339513 Page: 2 Date Filed: 06/01/2022
No. 21-40602
Warren Kenneth Paxton, Jr., for various alleged violations of her
constitutional rights related to pending state criminal charges and a child-
custody case. Proceeding pro se, Searcy challenges: the dismissal without
prejudice, under Federal Rule of Civil Procedure 41(b), of her action for want
of prosecution because she did not comply with a district-court order to file
an amended complaint on the court’s prisoner’s-civil-rights complaint form;
and the district court’s denial of relief under Federal Rule of Civil Procedure
60(b).
A district court’s sua sponte dismissal is typically reviewed for abuse
of discretion. E.g., McNeal v. Papasan, 842 F.2d 787, 789–90 (5th Cir. 1988).
A heightened standard of review applies, however, where, as in this matter,
plaintiff’s action likely would be barred by a statute of limitations if it were
dismissed without prejudice. See Millan v. USAA Gen. Indem. Co., 546 F.3d
321, 325–26 (5th Cir. 2008) (explaining “where the applicable statute of
limitations likely bars future litigation, a district court’s dismissal . . . should
be reviewed under the same heightened standard used to review a dismissal
with prejudice”). In such instances, a Rule 41(b) dismissal is tantamount to
a dismissal with prejudice. McNeal, 842 F.2d at 793 n.1 (explaining “when
the statute of limitations on a claim has expired, a dismissal of that claim
without prejudice is, in reality, a sanction no less harsh than a dismissal with
prejudice”). A dismissal with prejudice is improper unless the record
evidences “both (1) a clear record of delay or contumacious conduct by the
plaintiff, and (2) that a lesser sanction would not better serve the best
interests of justice”. Id. at 790. Failure to comply with “a few” orders
ordinarily will not be sufficient to satisfy the heightened standard. See Berry
v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191–92 & n.6 (5th Cir. 1992)
(explaining “[g]enerally, where a plaintiff has failed only to comply with a
few court orders or rules, we have held that the district court abused its
discretion in dismissing the suit with prejudice”).
2
Case: 21-40602 Document: 00516339513 Page: 3 Date Filed: 06/01/2022
No. 21-40602
Here, there is no clear record of delay or contumacious conduct, or
any evidence that the court considered a lesser sanction. See McNeal, 842
F.2d at 790. Two days before the court’s deadline for filing an amended
complaint on the correct form, Searcy mailed what, in essence, was an
amended complaint on a different form. Therefore, given the absence of a
clear record of delay or contumacious conduct, the dismissal of Searcy’s
claim was an abuse of discretion. (As a result, we need not address the denial
of the Rule 60(b) motion.)
VACATED and REMANDED.
3