     Case: 13-30962      Document: 00512621689         Page: 1    Date Filed: 05/07/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-30962
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             May 7, 2014
LEWIS E. LOVE,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellant

v.

COLONEL JODY BENDILY, Unit 1; ASSISTANT WARDEN DENNIS
GRIMES, Unit 1; STEVE RADER, Unit 1; DEPUTY WARDEN JAMES
LEBLANC, DCI; SECRETARY RICHARD STALDER, Department of
Corrections,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:08-CV-506


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Lewis E. Love, who was at the time Louisiana prisoner # 457127, filed a
civil rights complaint in which he claimed that prison officials had been
deliberately indifferent to his serious medical needs. This appeal arises from
the district court’s dismissal of Love’s action for failure to prosecute. Love


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-30962

contends that the district court abused its discretion in dismissing his action.
He argues that there is no evidence of intentional delay on his part and that
any violation was a single, unintentional incident. He also asserts that the
district court failed to consider sanctions other than dismissal.
      The district court dismissed Love’s action “without prejudice.” However,
where the limitations period “prevents or arguably may prevent” further
litigation, the standard of review should be the same as is used when reviewing
a dismissal with prejudice. Boazman v. Econ. Lab., Inc., 537 F.2d 210, 212-13
(5th Cir. 1976). As the appellants acknowledge, if Love filed a subsequent
lawsuit raising the same civil rights claims, the action would be time barred
under Louisiana law. See Cruz v. Louisiana ex rel. Dep’t of Pub. Safety and
Corrs., 528 F.3d 375, 378-79 (5th Cir. 2008); Jacobsen v. Osborne, 133 F.3d 315,
319 (5th Cir. 1998). The district court’s dismissal, therefore, is effectively a
dismissal with prejudice. See Boazman, 537 F.2d at 213.
      A “dismissal with prejudice is an extreme sanction that deprives the
petitioner of the opportunity to pursue his claim.” Millan v. USAA Gen. Indem.
Co., 546 F.3d 321, 326 (5th Cir. 2008) (internal quotation and citation omitted).
“A district court’s dismissal with prejudice is warranted only where a clear
record of delay or contumacious conduct by the plaintiff’ exists and a lesser
sanction would not better serve the interests of justice.”          Id. (internal
quotations and citations omitted). “Additionally, in most cases where this
Court has affirmed dismissals with prejudice, we found at least one of three
aggravating factors: (1) delay caused by the plaintiff himself and not his
attorney; (2) actual prejudice to the defendant; or (3) delay caused by
intentional conduct.” Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th
Cir. 1992) (internal quotation, brackets, and citation omitted).




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                                 No. 13-30962

      There is not a clear record of purposeful delay or contumacious conduct
by Love, who, on a single occasion, failed to comply with a local rule that
required him to inform the district court of a change of address. “Generally,
where a plaintiff has failed only to comply with a few court orders or rules,
[this court has] held that the district court abused its discretion in dismissing
the suit with prejudice.” Id. at 1192 & n.6. Moreover, a party’s negligence,
even if “careless, inconsiderate, or understandably exasperating,” does not
make conduct contumacious; “instead it is the stubborn resistance to authority
which justifies a dismissal with prejudice.” Millan, 546 F.3d at 327 (internal
quotation marks and citations omitted). Love’s failure to update his address
was seemingly “more a matter of negligence than purposeful delay or
contumaciousness.”    Burden v. Yates, 644 F.2d 503, 505 (5th Cir. 1981).
Additionally, none of the usual aggravating factors appear to be present in this
case. See Millan, 546 F.3d at 327.
      In view of the foregoing, the district court’s dismissal for failure to
prosecute was an abuse of discretion. See id. at 326. The district court’s
judgment is hereby VACATED and the case is REMANDED for further
proceedings.




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