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

                                                FILED
                                                                    July 31, 2009
                                 No. 07-20374
                               Summary Calendar                 Charles R. Fulbruge III
                                                                        Clerk

JIRRON DEMON CURTIS

                                             Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                             Respondent-Appellee


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:06-CV-4042


Before JONES, Chief Judge, and STEWART and OWEN, Circuit Judges.
PER CURIAM:*
      Jirron Demon Curtis, Texas prisoner # 1182051, was convicted by a jury
of aggravated robbery and sentenced to 65 years of imprisonment. This appeal
arises from the district court’s dismissal without prejudice of Curtis’s petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254 after Curtis failed to reply
to the respondent’s summary judgment motion within 30 days. Curtis argues
that the district court abused its discretion in dismissing his petition for want


      *
      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should not be published and is not precedent except under the limited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. 07-20374

of prosecution because his delay in filing the ordered response was not
attributable to either purposeful delay or willful disobedience.
      A district court has the authority to dismiss an action for failure to
prosecute or for failure to comply with any court order. F ED. R. C IV. P. 41(b).
The court possesses the inherent authority to dismiss the action sua sponte in
the absence of a motion by the defendant. Martinez v. Johnson, 104 F.3d 769,
772 (5th Cir. 1997).    The dismissal of an action pursuant to Rule 41(b) is
reviewed for abuse of discretion. McCullough v. Lynaugh, 835 F.2d 1126, 1127
(5th Cir. 1988). A dismissal without prejudice generally does not operate as an
adjudication on the merits; however, where the applicable statute of limitations
probably bars further litigation, the district court’s dismissal should be reviewed
as if the dismissal had been with prejudice. Gray v. Fid. Acceptance Corp.,
634 F.2d 226, 227 (5th Cir. 1981); F ED. R. C IV. P RO. 41(b). The parties agree
that Curtis’s statute of limitations period expired during the pendency of his
habeas proceedings and that the district court’s dismissal should be properly
viewed as a dismissal with prejudice. We concur.
      A dismissal with prejudice is an extreme sanction that deprives the
petitioner of the opportunity to pursue his claim further. Millan v. USAA Gen.
Indem. Co., 546 F.3d 321, 326 (5th Cir. 2008); Gray, 634 F.2d at 227.
Consequently, district courts have limited discretion to dismiss a claim with
prejudice, and this court will affirm such a dismissal only where the history of
the case indicates both (1) a clear record of purposeful delay or contumacious
conduct by the petitioner and (2) an express determination that the best
interests of justice would not be better served by lesser sanctions. Millan,
546 F.3d at 326; Long v. Simmons, 77 F.3d 878, 880 (5th Cir. 1996). In addition,
when affirming dismissals with prejudice, this court has usually found at least
one of three aggravating factors which include (1) the extent to which the
plaintiff, not his attorney, was personally responsible for the delay, (2) the



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degree of actual prejudice to the defendant, and (3) whether the delay was
caused by intentional conduct. Millan, 546 F.3d at 326.
      There is not a clear record of purposeful delay or contumacious conduct by
Curtis. This court’s cases have recognized that a delay warranting dismissal
with prejudice must be longer than a few months and is characterized by
“‘significant periods of total inactivity.’” Id. at 326-27 (citing McNeal v. Papasan,
842 F.2d 787, 791 (5th Cir. 1988)); John v. Louisiana, 828 F.2d 1129, 1131 (5th
Cir. 1987). In fact, dismissals with prejudice have generally been reserved for
“‘egregious and sometimes outrageous delays.’” Millan, 546 F.3d at 327 (quoting
Rogers v. Kroger Co., 669 F.2d 317, 321 (5th Cir. 1982)). A delay of less than 45
days passed between the filing of the summary judgment motion on March 22,
2007, and the dismissal of the action on May 4, 2007.
      Moreover, a party’s negligence-regardless of how careless or inconsiderate-
does not make conduct contumacious; “instead it is the stubborn resistence to
authority which justifies a dismissal with prejudice.” Millan, 546 F.3d at 327.
Curtis asserts that his untimely response was attributable to the lockdown of his
prison unit, which left him with no legal aid or legal supplies. Although it might
have been unreasonable or imprudent for Curtis to assume that the lockdown
excused his timely compliance with the district court’s order to file a response
to the summary judgment motion, the omission was “more a matter of negligence
than purposeful delay or contumaciousness.”           Morris v. Ocean Sys., Inc.,
730 F.2d 248, 252 (5th Cir. 1984).
      Furthermore, this court has generally held that the district court abuses
its discretion when it dismisses a case with prejudice where the petitioner “fail[s]
only to comply with a few court orders.” Berry v. CIGNA/RSI-CIGNA, 975 F.2d
1188, 1192 & n. 6 (5th Cir. 1992) (citing cases). The failure to reply to the
respondent’s summary judgment motion appears to be the only instance in
which Curtis did not comply with the district court’s orders.



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      In addition, the record is silent on whether the district court considered
lesser sanctions and determined them to be futile. See McNeal, 842 F.2d at 793-
94. Also, none of the usual aggravating factors appear to be present in this case.
See Millan, 546 F.3d at 327. Accordingly, the district court’s dismissal was an
abuse of discretion. See Long, 77 F.3d at 880. The district court’s judgment is
hereby VACATED and the case is REMANDED for further proceedings
consistent with this opinion.




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