     Case: 19-40235      Document: 00515464638         Page: 1    Date Filed: 06/24/2020




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

                                                                              FILED
                                    No. 19-40235                          June 24, 2020
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
WILLIAM A. ZELLMAR,

                                                 Plaintiff-Appellant

v.

WARDEN, GURNEY UNIT; UNNAMED OTHERS; KEVIN MOORE;
UNKNOWN SPERRY, Warden, Gurney Unit; UN-NAMED PERSONS, Step II
Medical Grievance Program,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:17-CV-386


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       William Zellmar, Texas prisoner # 02082873, filed the instant 42 U.S.C.
§ 1983 action alleging violations of his Eighth Amendment rights and the
Americans With Disabilities Act at the Gurney Unit of the Texas Department
of Criminal Justice. The magistrate judge granted his motion to proceed in
forma pauperis (IFP) and ordered Zellmar to pay the initial filing fee. The


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                    No. 19-40235

record indicates that another inmate received and signed for this order. Five
months later, the magistrate judge recommended that the district court
dismiss the case pursuant to Federal Rule of Civil Procedure 41(b) based on
Zellmar’s failure to pay the initial filing fee. Zellmar responded by filing
another motion to proceed IFP and a letter indicating that he had not received
the order to pay the partial fee. Without considering Zellmar’s alleged failure
to receive the initial payment order, the district court entered a final judgment
dismissing the case without prejudice for failure to prosecute or to obey a court
order pursuant to Rule 41(b). Following the dismissal, Zellmar appealed and
paid the district court filing fee in full.
      We ordinarily review a district court’s sua sponte dismissal for abuse of
discretion. McNeal v. Papasan, 842 F.2d 787, 789-90 (5th Cir. 1988). However,
a heightened standard of review applies where, as in this case, a plaintiff’s
action likely would be barred by a statute of limitations if it were dismissed
without prejudice. See Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 326
(5th Cir. 2008). In such cases, a dismissal under Rule 41(b) is tantamount to
a dismissal with prejudice. McNeal, 842 F.2d at 793 n.1. A dismissal with
prejudice is improper unless the case history evidences both “(1) a clear record
of delay or contumacious conduct by the plaintiff, and (2) that a lesser sanction
would not better serve the best interests of justice.” Id. at 790. A party’s
negligence does not make conduct contumacious; rather, “it is the stubborn
resistance to authority which justifies a dismissal with prejudice.” Millan, 546
F.3d at 327 (internal quotation marks and citation omitted). Failure to comply
with a few orders ordinarily will not be sufficient to satisfy the heightened
standard. See Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191-92 & n.6 (5th
Cir. 1992).




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                                  No. 19-40235

      The instant case does not present a clear record of delay or contumacious
conduct, nor is there any indication in the record that either the magistrate
judge or the district court considered a lesser sanction. See McNeal, 842 F.2d
at 790. Zellmar failed to comply only with a single order, which he asserted he
did not receive.       After receiving the magistrate judge’s report and
recommendation, he promptly responded. While Zellmar could have paid the
filing fee at this point, his failure to do so was not attributable to “stubborn
resistance to authority.” Millan, 546 F.3d at 327. Rather, Zellmar expressed
confusion about the handling of his first motion to proceed IFP, apparently
erroneously believing that the court had failed to rule on it. He later paid the
filing fee in full. Therefore, the district court’s dismissal of Zellmar’s complaint
was an abuse of discretion. See McNeal, 842 F.2d at 790.
      Accordingly, the judgment of the district court is VACATED, and the
case is REMANDED for further proceedings. We express no opinion on the
merits of Zellmar’s underlying § 1983 action.




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