Holesome v. Pontotoc County Jail ( 1999 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 97-60857
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MELVIN LOUIS HOLESOME,
Plaintiff-Appellant,
VERSUS
PONTOTOC COUNTY JAIL, ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Mississippi
(3:94-CV-16-B)
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July 15, 1999
Before POLITZ, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:*
The district court dismissed Melvin Louis Holesome’s
(“Holesome”) 42 U.S.C. § 1983 claim for Holesome’s alleged failure
to prosecute. Because we find this dismissal premature, we vacate
the district court’s order of dismissal and remand the case for
further proceedings.
I.
Holesome filed a pro se civil rights complaint, against the
Pontotoc County Jail (“Pontotoc”) alleging that his constitutional
rights were violated when he was assaulted by another inmate and
*
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this opinion should not be published and is not precedent except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.
was denied medical treatment until the following day. 2.3
The district court certified that Holesome could proceed with
his suit in forma pauperis (“IFP”). The court granted Holesome
permission to file an amended complaint naming Sheriff Randy
Roberts, Deputy Wayne Tutor, Deputy Steve Young, Deputy Jimmy Hipp,
and Deputy Purvis4 as defendants. Holesome later settled with
Tutor and Young for $500 and dismissed his lawsuit against them.
Holesome submitted his witness list to the district court
which included several inmates. In this witness list, Holesome
stated that he would be unable to pay for the witnesses’ court
appearance costs and requested the district court’s guidance. In
response to Holesome’s request for issuance of writs of habeas
corpus ad testificandum for himself and his witnesses, the district
court ordered that Holesome advance the U.S. Marshall’s costs for
transporting him and his witnesses in the amount of $442.36. In
the order, the district court warned Holesome that failure to pay
these costs would result in the dismissal of his suit for failure
to prosecute.
Holesome responded to the district court’s order stating that
he was indigent and had been granted in forma pauperis status. He
requested that the judge stay the trial date pending an
interlocutory appeal on the issue. The district court maintained
2
Holesome was allegedly knocked from his upper bunk bed by a
prisoner with a history of mental problems. As a result of the
fall, Holesome suffered a laceration that required sutures.
4
Purvis was never served with a summons and complaint.
Therefore, pursuant to Fed. R. Civ. P. 4(m), Holesome has abandoned
his claim against Purvis.
2
the trial date and when Holesome was not present when the case was
called for trial, the district court dismissed the suit with
prejudice.
II.
Under the circumstances of this case, the district court did
not abuse its discretion in requiring Holesome to advance the costs
for guards to transport him and his fellow prisoner witnesses to
trial as a condition to issuance of the writ. Holesome partially
settled his case against some of the defendants for a sum that was
sufficient to cover these costs. He made no satisfactory
explanation for disposing of these funds rather than using them to
finance his litigation against the remaining defendants.
We conclude, however, that the district court abused its
discretion in dismissing this suit.
“A dismissal with prejudice is appropriate only if the failure
to comply with the court order was the result of purposeful delay
or contumaciousness and the record reflects that the district court
employed lesser sanctions before dismissing the action.” Long v.
Simmons, 77 F.3d 878, 880 (5th Cir. 1996). Contumacious conduct has
been described as the “‘stubborn resistance to authority.’” McNeal
v. Papasan, 842 F.2d 787, 792 (5th Cir. 1988)(citation omitted).
On remand, the district court should give Holesome a
reasonable time to comply with the court’s order to advance the
transportation costs. If Holesome is unable to comply with the
order within a reasonable time, the district court should consider
other options that may avoid dismissal. In addition to other
relevant factors, the court should consider whether Holesome and
his prisoner witnesses are needed in court for the prosecution of
3
the case and whether the suit can be stayed until Holesome is
released. See Ballard v. Spradley, 557 F.2d 476 (5th Cir. 1977).
For the reasons stated above, the district court’s order of
dismissal is vacated and the case is remanded for further
proceedings consistent with this opinion.
VACATED and REMANDED.
4