     Case: 14-20374      Document: 00513130349         Page: 1    Date Filed: 07/27/2015




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


                                    No. 14-20374                                   FILED
                                  Summary Calendar                             July 27, 2015
                                                                              Lyle W. Cayce
                                                                                   Clerk
DAVID EARL KEITH,

                                                 Plaintiff-Appellant

v.

WARDEN E. GUTIERREZ; OFFICER C. CARR; P. ASSISTANT MENDEZ,

                                                 Defendants-Appellees


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:13-CV-1928


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       David Earl Keith, Texas prisoner # 1841789, appeals the dismissal of his
42 U.S.C. § 1983 complaint under Federal Rule of Civil Procedure 41(b) for
failure to prosecute and to comply with a court order. Keith argues that the
district court erred in dismissing his case.
       A district court may sua sponte dismiss an action for failure to prosecute
or obey a court order. FED. R. CIV. P. 41(b); McCullough v. Lynaugh, 835 F.2d


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-20374     Document: 00513130349      Page: 2   Date Filed: 07/27/2015


                                  No. 14-20374

1126, 1127 (5th Cir. 1988). Because the court’s order was silent as to whether
the instant dismissal was with prejudice, we deem the dismissal to be with
prejudice. Edwards v. City of Houston, 78 F.3d 983, 994 (5th Cir. 1996).
Though we review the decision for abuse of discretion, the scope of the district
court’s discretion is narrow when the dismissal is with prejudice. Berry v.
CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992). We will affirm a
dismissal with prejudice under Rule 41(b) only where there is a clear record of
delay or contumacious conduct by the plaintiff and where the district court has
determined that lesser sanctions were or would be futile. Long v. Simmons, 77
F.3d 878, 880 (5th Cir. 1996).
      The district court’s dismissal of Keith’s complaint was based on Keith’s
failure to comply with the district court’s April 30, 2014 order. Noncompliance
with a single court order, however, does not amount to a clear record of delay,
i.e., significant periods of inactivity, or contumacious conduct, “stubborn
resistance to authority.” Berry, 975 F.2d at 1191-92 n.5; McNeal v. Papasan,
842 F.2d 787, 792 (5th Cir. 1988); Holden v. Simpson Paper Co., 48 F. App’x
917, *2 (5th Cir. 2002).    A district court generally may not dismiss with
prejudice if the plaintiff “fail[s] only to comply with a few court orders.” Berry,
975 F.2d at 1192 & n.6. Moreover, there is no discussion in the record of other,
lesser sanctions considered by the court. Accordingly, under the circumstances
described, the dismissal of Keith’s complaint was an abuse of discretion.
      Keith additionally asserts on appeal that the district court erred when it
denied his motion for appointment of counsel. To the extent Keith moved the
district court to appoint counsel, he has not shown that the district court
abused its discretion when it failed to appoint counsel. See Baranowski v. Hart,
486 F.3d 112, 126 (5th Cir. 2007); Ulmer v. Chancellor, 691 F.2d 209, 212 (5th
Cir. 1982).



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    Case: 14-20374   Document: 00513130349   Page: 3   Date Filed: 07/27/2015


                              No. 14-20374

     The judgment is VACATED, and the case is REMANDED for further
proceedings.




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