Woods v. Social Security Administration , 313 F. App'x 720 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 11, 2009
No. 08-60536
Summary Calendar Charles R. Fulbruge III
Clerk
CHARLOTTE V WOODS
Plaintiff-Appellant
v.
SOCIAL SECURITY ADMINISTRATION
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:07-CV-137
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Charlotte V. Woods seeks leave to proceed in forma pauperis (IFP) on
appeal from the district court’s dismissal without prejudice of her civil suit
involving a social security matter. The district court dismissed her action
because she failed to obey its orders that she pay the filing fee and that, after she
paid the fee, she effectuate process on the defendants. See Fed. R. Civ. P. 4(m)
and 41(b).
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-60536
Woods has shown that she is a pauper for purposes of this appeal. See
Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). We dispense, however, with
further briefing and, for the reasons noted below, affirm the district court’s
judgment.
Dismissals pursuant to Rules 4 and 41 are reviewed for abuse of
discretion. See Long v. Simmons, 77 F.3d 878, 879 (5th Cir. 1996); Fournier v.
Textron Inc., 776 F.2d 532, 534 (5th Cir. 1985). If the effect of a dismissal
without prejudice prevents or arguably may prevent the plaintiff from again
raising the dismissed claims because of the applicability of a statute of
limitations, the dismissal may operate as a dismissal with prejudice. Long, 77
F.3d at 880. It appears that the district court’s dismissal of Woods’s suit
operates as a dismissal with prejudice. See 42 U.S.C. § 405(g).
We will affirm dismissals with prejudice only when (1) there is a clear
record of delay or contumacious conduct by the plaintiff, and (2) the district court
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. Long, 77 F.3d at 880. This court has explained that
providing the plaintiff with second and third chances to comply with an order
counts as a lesser sanction. See Callip v. Harris County Child Welfare Dep’t, 757
F.2d 1513, 1521 (5th Cir. 1985); see also Husley v. State of Texas, 929 F.2d 168,
171 (5th Cir. 1991).
In this case, Woods twice failed to obey the district court’s order to pay the
filing fee. Although she is a pro se plaintiff, she concedes that she is well
educated, and there is no reason to believe that she did not understand the
court’s orders or warning that her case would be dismissed if she did not pay the
fee. Moreover, four months passed after the district court’s last order that
Woods pay the filing fee, and Woods filed nothing with the district court. The
information available to the district court at the time that it dismissed Woods’s
action was that she was choosing to go to school instead of pursuing gainful
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No. 08-60536
employment and that she had unencumbered property worth $25,000 (her home)
and $17,000 (her car). Although Woods was given the opportunity to correct any
incorrect information in her IFP motions and affidavits and to correct any
incorrect assumptions made by the district court with respect to her financial
situation, she did not do so. Accordingly, given the information known to the
district court at the time it dismissed her suit, its dismissal was not an abuse of
discretion.
AFFIRMED; MOTION GRANTED.
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