     Case: 10-20135   Document: 00511251911   Page: 1   Date Filed: 10/04/2010




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                 October 4, 2010
                                No. 10-20135
                              Summary Calendar                   Lyle W. Cayce
                                                                      Clerk

ROBERT ALEXANDER TUFT,

                                           Plaintiff-Appellant

v.

THE STATE OF TEXAS; VERNON PITTMAN, Warden-Jester 3; JEROLD BRAGGS,
Assistant Warden, Jester 3; GUY SMITH, Assistant Regional Director-Texas
Department of Criminal Justice; DOUG WALDRON, Assistant
Regional Director-Texas Department of Criminal Justice; J. P. GUYTON, Assistant
Regional Director-Texas Department of Criminal Justice; SUSAN DOSTAL, University
of Texas Medical Branch Medical Program Administrator; NATHANIEL
QUARTERMAN, Director Texas Department of Criminal Justice-Correctional
Institutions Division; MELANIE POTTER, MLP P.A., University of Texas Medical
Branch; JALYN WILSON, P.T. University of Texas Medical Branch; PATSY GUERRA,
(Velasquez), Texas Department of Criminal Justice Access to Courts; VICKY
BARROWS, Texas Department of Criminal Justice Access to Courts; ARLINE
WALKER, Texas Department of Criminal Justice Access to Courts; RACHEL
CROSBY, C.O.V. Texas Department of Criminal Justice; CHERYL LAWSON, Texas
Department of Criminal Justice Grievance Analyst; MARK A. ANDREWS, Texas
Department of Criminal Justice Chaplain; JOHN AND JANE DOE(S), Texas
Department of Criminal Justice/University of Texas Medical Branch, Texas
Department of Criminal Justice-Correctional Institutions Division Staff,

                                           Defendants-Appellees


                  Appeal from the United States District Court
                       for the Southern District of Texas
                             USDC No. 4:09-CV-846
   Case: 10-20135       Document: 00511251911 Page: 2             Date Filed: 10/04/2010
                                    No. 10-20135

Before HIGGINBOTHAM, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Robert Tuft, Texas prisoner # 1062966, appeals the dismissal of his 42
U.S.C. § 1983 civil rights action for failure to prosecute under Federal Rule of
Civil Procedure 41(b).         Tuft’s amended complaint against over a dozen
defendants raised nine claims relating to the conditions of his confinement, the
failure to evacuate for a hurricane, the denial of access to the courts, the
infringement of his religious freedom, and retaliation by prison officials. The
district court ordered Tuft to file a second amended complaint that contained
only claims related to a single set of facts in accordance with Federal Rules of
Civil Procedure 18 and 20. When he failed to do so, district court dismissed
Tuft’s lawsuit without prejudice under Rule 41(b).
       We review such a dismissal “for abuse of discretion.” Larson v. Scott, 157
F.3d 1030, 1032 (5th Cir. 1998). However, because at least some of Tuft’s claims
would not be time barred, the scope of the discretion is narrowed. See Berry v.
CIGNA/RSI-CIGNA, 975 F.2d 1188, 1190-91 (5th Cir. 1992).
       Under Rule 20(a)(2), parties may be joined as defendants if the plaintiff
asserts a claim against them “jointly, severally, or in the alternative with respect
to or arising out of the same transaction, occurrence, or series of transactions or
occurrences” and “any question of law or fact common to all defendants will arise
in the action.” A district court has discretion under Rule 20(a) to control the
scope of a lawsuit by limiting the number of defendants a plaintiff may hail into
court in a particular case. Arrington v. City of Fairfield, 414 F.2d 687, 693 (5th
Cir. 1969). In addition, “the creative joinder of actions” by prisoner plaintiffs to
avoid the strictures of the Prison Litigation Reform Act of 1995 (PLRA), Pub. L.
104-134, §§ 804-05, 110 Stat. 1321, 1321-73 to -75 (2006) (codified in relevant


       *
         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.

                                              2
   Case: 10-20135    Document: 00511251911 Page: 3         Date Filed: 10/04/2010
                                 No. 10-20135

part at 28 U.S.C. §§ 1915, 1915A), should be discouraged. Patton v. Jefferson
Corr. Ctr., 136 F.3d 458, 464 (5th Cir. 1998).
      In this case, the district court properly found that Tuft’s amended
complaint transgressed the limitations in Rule 20(a). However, where an action
is time barred following a dismissal without prejudice, the standard of review is
the same as if the action had been dismissed with prejudice. Berry, 975 F.2d at
1191. In this case, there is not a “clear record of delay or contumacious conduct,”
and the district court has not “expressly determined that lesser sanctions would
not prompt diligent prosecution.” Id. In addition, the record does not show “that
the district court employed lesser sanctions that proved to be futile.” Id.
      In fact, under Federal Rule of Civil Procedure 21, “[m]isjoinder of parties
is not a ground for dismissing an action.” Instead, a district court, “on motion
or on its own, . . . may at any time, on just terms, add or drop a party” and “may
also sever any claim against a party.” F ED. R. C IV. P. 21. In other words, a court
faced with misjoinder “‘has two remedial options: (1) misjoined parties may be
dropped on such terms as are just; or (2) any claims against misjoined parties
may be severed and proceeded with separately.’”              Acevedo v. Allsup’s
Convenience Stores, Inc., 600 F.3d 516, 520 (5th Cir. 2010) (quoting DirectTV,
Inc. v. Leto, 467 F.3d 842, 845 (3d Cir. 2006) (internal quotation marks and
citation omitted))). Because the record does not show that Tuft delayed the
proceedings in this case, acted contumaciously, or deliberately disobeyed court
orders, the district court abused its discretion “when it dismissed this entire
action, rather than simply dismissing” misjoined claims, dropping parties, or
both. Id. at 522; see also Berry, 975 F.2d at 1191-92.
      Accordingly, we affirm the district court’s finding of misjoinder, reverse the
dismissal of Tuft’s entire lawsuit, and remand the case for further proceedings
consistent with this opinion. We disclaim any limitation on the district court’s
authority on remand to dismiss any of Tuft’s claims on any other basis, such as



                                         3
  Case: 10-20135   Document: 00511251911 Page: 4   Date Filed: 10/04/2010
                               No. 10-20135

any PLRA provisions that may be applicable.   See, e.g.,28 U.S.C. § 1915;
§ 1915A; 42 U.S.C. § 1997e(e).
      AFFIRMED in part; REVERSED in part; REMANDED.




                                   4
