     Case: 17-20271      Document: 00514601631         Page: 1    Date Filed: 08/15/2018




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

                                    No. 17-20271                            FILED
                                  Summary Calendar                    August 15, 2018
                                                                       Lyle W. Cayce
                                                                            Clerk
CLEOPHUS CARRAWAY,

                                                 Plaintiff-Appellant

v.

ZAE ZEON; JAMIE WILLIAMS; STEPHANIE OLIVER; KRYSTAL
ROTRAMEL; JACKLYN FISHER; CMC PHARMACY; UNIVERSITY OF
TEXAS MEDICAL BRANCH,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CV-2754


Before KING, ELROD, and HIGGINSON, Circuit Judges:
PER CURIAM: *
       Cleophus Carraway, Texas prisoner # 490329, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 complaint, in which he alleged that prison
officials were deliberately indifferent to his serious medical needs. The district
court dismissed the suit for failure to prosecute, without prejudice, pursuant
to Rule 41(b) of the Federal Rules of Civil Procedure.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-20271

      A district court may sua sponte dismiss an action for failure to prosecute
or to comply with any order. Fed. R. Civ. P. 41(b); McCullough v. Lynaugh,
835 F.2d 1126, 1127 (5th Cir. 1988). The scope of the district court’s discretion
is narrower when the Rule 41(b) dismissal is with prejudice or when a statute
of limitations would bar re-prosecution of a suit dismissed under Rule 41(b)
without prejudice. Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir.
1992). In Carraway’s case, although the district court dismissed the suit
without prejudice, the dismissal may have effectively been with prejudice due
to the applicable two-year statute of limitations. Gartrell v. Gaylor, 981 F.2d
254, 256 (5th Cir. 1993); TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a).
      Where the limitations period “prevents or arguably may prevent” further
litigation, the standard of review should be the same as that used when
reviewing a dismissal with prejudice. Boazman v. Economics Laboratory, Inc.,
537 F.2d 210, 212-13 (5th Cir. 1976). This court will affirm dismissals with
prejudice for failure to prosecute only when there is a clear record of delay or
contumacious conduct by the plaintiff and the district court has expressly
determined that lesser sanctions would not prompt diligent prosecution, or
where the record shows that the district court employed lesser sanctions that
proved to be futile. Berry, 975 F.2d at 1191-92 & nn.5-6.
      There is not a clear record of purposeful delay or contumacious conduct
by Carraway. The order of dismissal was issued on February 21, 2017, which
was 18 days after February 3, 2017, the due date for Carraway’s reply to the
motion to dismiss. Moreover, although he did not file the proper responsive
pleading, Carraway attempted to litigate his claims during the relevant time
period. See, e.g., McNeal v. Papasan, 842 F.2d 787, 789-91 (5th Cir. 1988)
(providing that a delay warranting dismissal with prejudice must be longer
than just a few months and must be characterized by significant periods of



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                                  No. 17-20271

total inactivity). Generally, where a plaintiff fails to comply with only a few
court orders or rules, this court has held that the district court’s dismissal of a
suit with prejudice is an abuse of discretion. See Berry, 975 F.2d at 1192 & n.6.
Also, the district court did not determine that lesser sanctions would not
prompt diligent prosecution, and the district court did not employ lesser
sanctions that proved to be futile. See id. Finally, the record does not establish
the existence of the usual aggravating factors. See Millan v. USAA Gen.
Indem. Co., 546 F.3d 321, 326 (5th Cir. 2008).
      Accordingly, the district court’s dismissal of Carraway’s suit was an
abuse of discretion. The district court’s judgment is VACATED and the case is
REMANDED for further proceedings. Carraway’s motion to supplement the
record is DENIED.




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