Campbell v. Dretke , 261 F. App'x 702 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 8, 2008
No. 06-50356
Summary Calendar Charles R. Fulbruge III
Clerk
KEITH CAMPBELL
Plaintiff-Appellant
v.
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; EDUARDO
CARMONA; SALER, Lieutenant; DEANDA, Correctional Officer; LARA,
Correctional Officer
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:06-CV-1
Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Keith Campbell, Texas prisoner # 1219880, has filed a motion for leave to
proceed in forma pauperis (IFP) on appeal. The district court denied Campbell’s
IFP motion and certified that the appeal was not taken in good faith. By moving
for IFP status, Campbell is challenging the district court’s certification. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
*
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should not be published and is not precedent except under the limited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. 06-50356
Campbell contends that the district court erred in dismissing his
complaint for want of prosecution and denying his motion to proceed IFP on
appeal. Although the district court’s dismissal of Campbell’s complaint was
without prejudice, a re-filed complaint would probably be barred by the
applicable two-year statute of limitations, and, thus, the standard of review is
the same as is used when reviewing a dismissal with prejudice. See Gray v.
Fidelity Acceptance Corp., 634 F.2d 226, 227 (5th Cir. 1981). Under this
narrower standard, dismissal is generally permitted only in the face of a clear
record of delay or contumacious conduct by the plaintiff and when the district
court has determined that lesser sanctions were or would be futile. Id. Further,
this court usually finds at least one of three aggravating factors when it affirms
dismissals with prejudice: (1) delay caused by the plaintiff himself and not his
attorney; (2) actual prejudice to the defendant; or (3) delay caused by intentional
conduct. Sealed Appellant v. Sealed Appellee, 452 F.3d 415, 418 (5th Cir. 2006).
A review of the record shows no clear record of purposeful delay or
contumacious conduct by Campbell. On January 23, 2006, the district court
ordered Campbell to re-file his complaint on the proper 42 U.S.C. § 1983 form by
February 8, 2006. Campbell failed to comply with the district court’s order, and
the district court dismissed his complaint 17 days later on February 9, 2006.
The district court did not determine that lesser sanctions would not prompt
diligent prosecution, and the record does not indicate that the district court
employed lesser sanctions that proved to be futile. Further, as the district court
did not inquire into the presence of aggravating factors, the record does not
establish the existence of the usual aggravating factors. Therefore, the district
court abused its discretion in dismissing Campbell’s complaint for want of
prosecution, and Campbell has demonstrated that his appeal involves legal
points arguable on their merits. See Gray, 634 F.2d at 227; Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983). Accordingly, Campbell’s motion for leave to
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No. 06-50356
proceed IFP on appeal is granted, the district court’s judgment is vacated, and
the case is remanded to the district court for further proceedings.
On May 21, 2007, this court barred Campbell, pursuant to 28 U.S.C.
§ 1915(g), from proceeding IFP in any civil action or appeal brought while he is
incarcerated or detained in any facility unless he is under imminent danger of
serious physical injury. Campbell v. Bear, No. 06-10196 (5th Cir. May 21, 2007)
(unpublished); Campbell v. Pace Setter Personnel, No. 06-10478 (5th Cir. May 21,
2007) (unpublished). Because Campbell filed his complaint and IFP motion prior
to this court’s imposition of the § 1915(g) bar, Campbell is not barred from
proceeding IFP in the instant case. Nevertheless, he is barred from proceeding
IFP in any future civil actions or appeals brought while he is incarcerated or
detained in any facility unless he is under imminent danger of serious physical
injury.
IFP MOTION GRANTED; VACATED AND REMANDED.
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