                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                                F I L E D
                        In the                                 February 22, 2007
   United States Court of Appeals                          Charles R. Fulbruge III
              for the Fifth Circuit                                Clerk
                   _______________

                     m 06-20555
                   Summary Calendar
                   _______________




                 JOSEPH C. ORDUNA,

                                        Plaintiff-Appellant,

                        VERSUS

THE TEXAS COMMISSION ON ALCOHOL AND DRUG ABUSE
                         AND
                     JIM MCDADE,

                                        Defendants-Appellees.


             _________________________

       Appeal from the United States District Court
           for the Southern District of Texas
                   m 4:01-CV-1474
         ______________________________
Before SMITH, WIENER, and OWEN,                           against TCADA and McDade. After a hear-
  Circuit Judges.                                         ing, Orduna filed a motion to re-open against
                                                          TCADA and McDade, and the court granted
PER CURIAM:*                                              the motion.

   The district court dismissed Joseph Ordu-                 TCADA and McDade then moved for dis-
na’s case against the Texas Commission on Al-             missal under rule 41(b)2 for failing to prose-
cohol and Drug Abuse (“TCADA”) and Jim                    cute. The court granted the motion, finding
McDade for lack of prosecution under Federal              that Orduna’s inactionSSnot the clerk’s er-
Rule of Civil Procedure 41(b). We affirm.                 rorSShad caused the delay, because (1) Ordu-
                                                          na should have known it did not take three
                      I.                                  years for the court to set a trial date; (2) the
   Orduna sued the State of Texas and                     clerk’s error of closing the case was a matter
TCADA in April 2000. He amended his peti-                 of public record; and (3) Orduna had not con-
tion in March 2001 and May 2001, nonsuiting               ducted any discovery or filed any pleadings.
the state and adding McDade, Golden Leader-               Further, the court found that Orduna’s inac-
ship Academy, and Richard Johnson as defen-               tion had hampered the discovery process in
dants.                                                    such a way that would prejudice TCADA and
                                                          McDade.3
   The matter was removed to federal court,
and Orduna obtained leave to depose McDade                                      II.
and conduct limited discovery, but he took no                We review for abuse of discretion a dis-
action pursuant to that permission. He ob-                missal for lack of prosecution. Tello v.
tained a default judgment against Golden                  Comm’r, 410 F.3d 743, 744 (5th Cir.), cert.
Leadership Academy and Johnson in March                   denied, 126 S. Ct. 381 (2005). The standard
2002, and the court entered final judgment as             to evaluate dismissals for lack of prosecution
to them.

   In September 2002, the district clerk’s of-               2
                                                                 That rule states:
fice accidentally closed the case as to all defen-
dants, including TCADA and McDade. Or-                         For failure of the plaintiff to prosecute or to
duna took no action for three years1 until the               comply with these rules or any order of court, a
district court, in January 2006, noticed the                 defendant may move for dismissal of an action
case had been mistakenly closed and asked Or-                or of any claim against the defendant. Unless
duna whether he intended to pursue claims                    the court in its order for dismissal otherwise
                                                             specifies, a dismissal under this subdivision and
                                                             any dismissal not provided for in this rule, other
                                                             than a dismissal for lack of jurisdiction, for im-
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-          proper venue, or for failure to join a party un-
termined that this opinion should not be published           der Rule 19, operates as an adjudication upon
and is not precedent except under the limited cir-           the merits.
cumstances set forth in 5TH CIR. R. 47.5.4.
                                                             3
                                                               After TCADA and McDade were added to the
   1
    Orduna claims he was delaying because he              suit, the legislature dissolved TCADA, and Mc-
was waiting for the court to set a trial date.            Dade has retired.

                                                      2
is plain:

   Dismissals with prejudice for failure to pro-
   secute are proper only where (1) there is a
   clear record of delay or contumacious con-
   duct by the plaintiff and (2) the district
   court has expressly determined that lesser
   sanctions would not prompt diligent prose-
   cution, or the record shows that the district
   court employed lesser sanctions that proved
   to be futile. In most cases, a plain record
   of delay or contumacious conduct is found
   if one of the three aggravating factors is
   also present: (1) delay caused by the plain-
   tiff; (2) actual prejudice to the defendant; or
   (3) delay as a result of intentional conduct.

Stearman v. Comm’r, 436 F.3d 533, 535 (5th
Cir.) (per curiam), cert. denied, 126 S. Ct.
2900 (2006) (internal citations omitted).

   Orduna took no action for four and a half
years.4 To conduct discovery or file pleadings,
he did not need the court to set a trial date, so
he caused the delay. Also, TCADA would
suffer “actual prejudice,” because it no longer
exists as an entity. The district court had dis-
cretion to dismiss Orduna’s claims, and based
on the guiding standard, it did not abuse that
discretion.

   The judgment of dismissal is AFFIRMED.




   4
     Prolonged inactivity is sufficient to warrant
dismissal in this case. See Harrelson v. United
States, 613 F.2d 114, 116 (5th Cir. 1980) (per cur-
iam) (“In light of the significant inactivity of the
plaintiff, we cannot say the district court abused its
discretion in dismissing the complaint.”).

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