     Case: 19-30206      Document: 00515234978        Page: 1     Date Filed: 12/13/2019




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

                                                                            FILED
                                     No. 19-30206                   December 13, 2019
                                                                       Lyle W. Cayce
RON JOHNSON,                                                                Clerk


              Plaintiff - Appellant

v.

VICTOR E. JONES, JR., individually & in his official capacity as Sheriff for
Natchitoches Parish; PATRICK DAVIS, individually & in his official capacity
as Lieutenant for the Natchitoches Parish Sheriff's Office; DEAN DOVE,
individually & in his official capacity as Warden for the Natchitoches Parish
Detention Center,

              Defendants - Appellees



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:17-CV-1187


Before DAVIS, SMITH, and COSTA, Circuit Judges.
PER CURIAM:*
      Ron Johnson appeals the with-prejudice dismissal of his civil rights
lawsuit. The district court dismissed the case as a sanction under Federal
Rules of Civil Procedure 37(b)(2) and 41(b). Although the district court was
understandably frustrated with plaintiff’s late and incomplete discovery


      *  Under 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 19-30206
responses, not all the requirements for the “drastic sanction” of dismissal with
prejudice existed. See Moore v. CITGO Ref. & Chems. Co., L.P., 735 F.3d 309,
315 (5th Cir. 2013). We thus vacate the judgment and remand for further
proceedings.
                                        I.
        In September 2017, Johnson sued Victor Jones, the Natchitoches Parish
Sheriff; Patrick Davis, one of Jones’s lieutenants; and Dean Dove, the
Natchitoches Parish Detention Center Warden. According to the complaint,
Davis physically attacked Johnson—a Detention Center inmate—while he was
wearing hand and feet restraints. A month into the suit, the defendants served
Johnson with interrogatories, requests for production, and authorizations to
obtain his medical and employment records. Johnson’s counsel, believing the
requests were premature because they were served before the Rule 26(f)
scheduling conference, did not respond.
        Having still not received responses by February 2018, the defendants
moved to compel and sought sanctions.        Johnson finally responded to the
discovery requests on May 15, 2018, just hours before the magistrate judge
heard argument on the defendants’ motion. At the hearing, the defendants
withdrew their request for sanctions.
        But the motion to compel was still pending. Finding that Johnson’s
responses were “evasive and incomplete,” the magistrate judge granted the
motion to compel. The magistrate judge ordered Johnson to supplement his
interrogatory responses and to produce the requested documents by June 21,
2018.     The magistrate judge also ordered Johnson to sign medical and
employment record authorizations by the same date.
        Johnson failed to do so. Relying on that failure, the defendants moved
for dismissal with prejudice under Rules 37(b)(2) and 41(b). That motion
prompted Johnson to supplement his discovery responses.
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                                 No. 19-30206
      Five months later, the magistrate judge ruled that Johnson’s
supplemental responses did not comply with the May 2018 discovery order and
ordered additional briefing on the motion to dismiss. Johnson provided the
requested authorizations as attachments to his brief.
      Even though Johnson had finally provided the authorizations, the
magistrate judge recommended that the motion to dismiss be granted. The
recommendation cited both Federal Rule 37(b)(2), the rule specifically
governing discovery violations, and Rule 41(b), the general rule governing
dismissal for failure to prosecute or comply with court orders. The magistrate
judge noted that Johnson had violated the discovery order by submitting
incomplete and untimely responses. He also observed that Johnson’s discovery
cooperation “was only prompted by either a motion by [the] [d]efendants or the
Court’s orders,” and he failed to verify his original or supplemental
interrogatory responses. The magistrate judge recognized, however, that it
was unclear whether the violations were the fault of Johnson or his attorney.
      Adopting the magistrate judge’s recommendation, the district court
entered final judgment dismissing Johnson’s complaint with prejudice.
                                      II.
      We review for abuse of discretion a district court’s dismissal with
prejudice under Rules 37(b)(2) or 41(b). Griggs v. S.G.E. Mgmt., L.L.C., 905
F.3d 835, 844 (5th Cir. 2018) (Rule 41(b)); FDIC v. Conner, 20 F.3d 1376, 1380
(5th Cir. 1994) (Rule 37(b)(2)). Dismissal with prejudice “is a severe sanction
that implicates due process.” Moore, 735 F.3d at 315. This “draconian remedy”
thus should “not be used lightly, and should be used . . . only under extreme
circumstances.” Conner, 20 F.3d at 1380 (quoting EEOC v. Gen. Dynamics
Corp., 999 F.2d 113, 119 (5th Cir. 1993)).




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                                  No. 19-30206
                                       III.
                                       A.
      Because a dismissal with prejudice punishes the party bringing the suit,
that sanction may issue under Rule 37(b)(2) only if “the violation of the
discovery order [was] attributable to the client instead of the attorney.”
Conner, 20 F.3d at 1380.      Not only is that finding lacking here, but the
magistrate judge acknowledged that he could not determine whether the client
was responsible for any of the discovery problems. Rule 37(b)(2) thus does not
support the dismissal with prejudice. Id.; see also Oprex Surgery (Baytown),
L.P. v. Sonic Auto. Emp. Welfare Benefit Plan, 704 F. App’x 376, 381 (5th Cir.
2017) (per curiam).
                                       B.
      That leaves Rule 41(b). Rule 41(b) allows dismissal with prejudice “only
where there is a showing of (a) a clear record of delay or contumacious conduct
by the plaintiff, and (b) where lesser sanctions would not serve the best
interests of justice.” Gates v. Strain, 885 F.3d 874, 883 (5th Cir. 2018) (quoting
Morris v. Ocean Sys., Inc., 730 F.2d 248, 252 (5th Cir. 1984)). “Generally,
where a plaintiff has failed only to comply with a few court orders or rules, we
have held that the district court abused its discretion in dismissing the suit
with prejudice.” Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 n.6 (5th
Cir. 1992) (collecting cases); see also Morgan v. Ams. Ins. Co., 759 F. App’x 255,
257–58 (5th Cir. 2019).
      Despite the extensive motion practice relating to Johnson’s discovery
responses, there was only one failure to comply with a court order.          And
Johnson did not completely flout that order; he submitted some discovery
responses and filed supplemental responses a month after the district court’s
deadline.   That conduct, though certainly far from satisfactory, does not
amount to the “‘stubborn resistance to authority’ which justifies a dismissal
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                                 No. 19-30206
with prejudice.” Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 327 (5th Cir.
2008) (quoting McNeal v. Papasan, 842 F.2d 787, 792 (5th Cir. 1988)). For
comparison’s sake, our recent decisions affirming dismissal-with-prejudice
sanctions involved a party’s persistent refusals to arbitrate, Griggs, 905 F.3d
at 845; a plaintiff’s intentional flight from law enforcement for five years,
Gates, 885 F.3d at 883; and a plaintiff’s “flout[ing]” multiple “court orders
simply because he [was] not independently certain of their validity,”
Nottingham v. Warden, Bill Clements Unit, 837 F.3d 438, 442 (5th Cir. 2016).
Unlike those cases, the conduct here—though troubling—did not “threaten[]
the integrity of the judicial process.” Rogers v. Kroger Co., 669 F.2d 317, 320
(5th Cir. 1982).
      In addition to the absence of contumacious conduct, the magistrate judge
did not first try a lesser sanction or warn Johnson that dismissal would follow
any further violations. The magistrate judge stated that “[l]esser sanctions
ha[d] been employed . . . to no avail,” but compelling discovery, which the court
did once, is not a Rule 41(b) sanction. Nottingham, 837 F.3d at 442 (explaining
lesser sanctions under Rule 41(b) include fines, costs, or damages assessed
against the plaintiff, explicit warnings, conditional dismissal, and dismissal
without prejudice).
      For these reasons, dismissal was also improper under Rule 41(b).
                                      ***
      The judgment is VACATED, and the case is REMANDED for further
proceedings. We trust that prompt attention will be paid to any additional
discovery requests or other deadlines so that this case may proceed
expeditiously to resolution.




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