Teel v. Walker ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20023
Summary Calendar
DARRIS D. TEEL,
Plaintiff-Appellant,
versus
NFN WALKER, Nurse; BURKHACTER,
Nurse, CHASTAIN, Dr’s Assistant;
OWENS, Officer; COCHETT, Officer;
GOMEZ, Reg. Dir.,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-97-CV-302
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March 21, 2001
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
Darris D. Teel, Texas state prisoner # 656908, argues
that the district court abused its discretion in dismissing his
complaint for want of prosecution because the Texas prison
officials refused to comply with the district court’s orders to
assist Teel in properly submitting his in forma pauperis (IFP)
application.
*
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that this opinion should not be published and is not precedent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. 99-20023
-2-
A district court’s sua sponte dismissal of an action for
failure of a plaintiff to prosecute or to comply with any court
order is reviewed for an abuse of discretion. Fed. R. Civ. P.
41(b); Gonzales v. Firestone Tire & Rubber Co., 610 F.2d 241, 247-
48 (5th Cir. 1980). A Rule 41(b) dismissal with prejudice is
considered an extreme sanction which is warranted only when there
is a clear record of delay or contumacious conduct by the
plaintiff, and the district court has expressly determined that
lesser sanctions would not prompt diligent prosecution. Berry v.
CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992).
If a plaintiff’s action would be barred by a statute of
limitations, such as in the instant case, a dismissal under Rule
41(b) is tantamount to a dismissal with prejudice. McNeal v.
Papasan, 842 F.2d 787, 793 n.1 (5th Cir. 1988); Owens v. Okure, 488
U.S. 235, 243-48 (1989); Ali v. Higgs, 892 F.2d 438, 439 (5th Cir.
1990).
The record reflects that the district court gave Teel
several opportunities to comply with its orders to provide the
necessary documentation authorizing the payment of the filing fee
in installments from his inmate trust fund. However, it is not
clear from the record whether Teel’s failure to comply with the
orders was the result of his lack of diligence or because prison
officials failed or refused to process his withdrawal authorization
form.
The district court abused its discretion in dismissing
Teel’s complaint without obtaining evidence, by affidavit or
otherwise, with respect to who was responsible for the lack of
No. 99-20023
-3-
compliance with its orders. Therefore, the district court’s
dismissal of the complaint is VACATED, and the case is REMANDED to
the district court for further consideration of this issue.
In so doing, we note that since the case was filed, Teel
has become subject to the “three-strikes” bar of in forma pauperis
prisoner litigation. See Teel v. Burrescia, No. 00-11057 (5th
Cir., Feb. 13, 2001) (unpublished). Technically, the bar may not
apply to this suit, which Teel commenced long before the three-
strikes order. See 28 U.S.C. § 1915(g). Teel should be aware,
however, that if this case is unsuccessful in the trial court, the
bar will prevent him from pursuing a further I.F.P. appeal.
Moreover, the imposition of the bar suggests that Teel has a
history of pursuing frivolous litigation, so he could become
subject to a sanction award in the district court if this action is
groundless.
VACATED and REMANDED; Sanctions Warning Issued.