     Case: 15-41457      Document: 00513889873         Page: 1    Date Filed: 02/24/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 15-41457                                   FILED
                                  Summary Calendar                          February 24, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
HOWARD F. CARROLL,

                                                 Plaintiff-Appellant

v.

JOHN RUPERT, Warden, Coffield Unit; MICHAEL ROARK, Lieutenant,
Coffield Unit; MICHAEL COLLUM, Lieutenant, Coffield Unit; GUY
FERGUSON, Lieutenant, Coffield Unit; BRETT BUCKLEY; et al,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:15-CV-569


Before BENAVIDES, PRADO, and COSTA, Circuit Judges.
PER CURIAM: *
       Howard F. Carroll, Texas prisoner # 1067360, appeals the dismissal,
without prejudice, of his 42 U.S.C. § 1983 complaint for want of prosecution
and failure to obey an order. Carroll argues that the district court erred in
dismissing his complaint. He also challenges the magistrate judge’s (MJ’s)



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-41457

denial of his motion for appointment of counsel. He further requests the
appointment of appellate counsel.
        Under Federal Rule of Civil Procedure 41(b), 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 1126, 1127 (5th Cir. 1988).
A Rule 41(b) dismissal is reviewed for abuse of discretion. McCullough, 835
F.2d at 1127. “Our review is more exacting where . . . the dismissal is without
prejudice but the applicable statute of limitations probably bars future
litigation.” Coleman v. Sweetin, 745 F.3d 756, 766 (5th Cir. 2014) (internal
quotation marks and citation omitted).
        Because Carroll would be time barred from refiling his excessive use of
force claims, the district court’s dismissal without prejudice should be treated
as a dismissal with prejudice. See id.; Burrell v. Newsome, 883 F.2d 416, 418
(5th Cir. 1989). “A dismissal with prejudice will be affirmed only if: (1) there
is a clear record of delay or contumacious conduct by the plaintiff, and (2) lesser
sanctions would not serve the best interests of justice.” Coleman, 745 F.3d at
766.
        The district court’s dismissal of Carroll’s complaint was based on his
failure to comply with the MJ’s July 31, 2015, order requiring him, within 14
days of receipt of the order, to pay the initial partial filing fee of $13.10 or offer
an explanation for failing to pay the fee. Noncompliance with a single court
order, however, does not amount to a clear record of delay, i.e., “significant
periods of total inactivity.” Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191
n.5 (5th Cir. 1992) (internal quotation marks and citation omitted). The record
indicates that Carroll did not fail to comply with the MJ’s order because he did
not receive the order until August 25, 2015. Within 14 days of receipt of the
order, Carroll filed, among other things, his most recent inmate trust account



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                                 No. 15-41457

statement showing an account balance of zero. Furthermore, Carroll’s actions
do not show a “stubborn resistance to authority” that is the hallmark of
contumacious conduct. Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 327
(5th Cir. 2008) (internal quotation marks and citation omitted).         Rather,
Carroll’s actions reveal that he made a good faith effort to comply with the MJ’s
order. Because there is no clear record of delay or contumacious conduct, we
vacate the district court’s judgment and remand the case for further
proceedings.
      Carroll also contends that the MJ erred by denying his motion for
appointment of counsel. We must examine the basis of our jurisdiction, sua
sponte, if necessary. See Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). A
magistrate judge has authority to hear and determine pretrial matters, such
as a motion for the appointment of counsel. See 28 U.S.C. § 636(b)(1)(A).
However, a magistrate judge’s orders are not final orders within the meaning
of 28 U.S.C. § 1291 and may not be appealed to this court directly.          See
Donaldson v. Ducote, 373 F.3d 622, 624 (5th Cir. 2004). Because Carroll did
not consent to proceed before the MJ and he did not challenge the MJ’s order
in the district court, we lack jurisdiction to address the MJ’s denial of his
motion for appointment of counsel.
      Accordingly, the appeal is DISMISSED in part for lack of jurisdiction.
The district court’s judgment is VACATED, and the case is REMANDED for
further proceedings. Carroll’s request for appointment of appellate counsel is
DENIED.




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