     Case: 13-20280      Document: 00512689875         Page: 1    Date Filed: 07/08/2014




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

                                    No. 13-20280                                  FILED
                                  Summary Calendar                             July 8, 2014
                                                                             Lyle W. Cayce
                                                                                  Clerk
PAUL DWAYNE HUMPHREY,

                                                 Petitioner-Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CV-2918


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
       Paul Dwayne Humphrey, Texas prisoner # 364000, filed a 28 U.S.C.
§ 2254 petition challenging the validity of a December 2011 decision by the
Texas Board of Pardons and Paroles to revoke his parole. The respondent
moved to dismiss Humphrey’s petition as moot and provided the district court
with documents showing that Humphrey had been released to mandatory



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 13-20280      Document: 00512689875        Page: 2     Date Filed: 07/08/2014


                                     No. 13-20280

supervision on January 29, 2013. Less than a month after Humphrey had been
released from prison, the district court sua sponte dismissed his § 2254 petition
for want of prosecution because Humphrey had failed to keep the court
apprised of his change of address.              After the district court denied two
postjudgment motions filed by Humphrey, he filed a notice of appeal that was
timely with respect to the underlying order of dismissal.                   We granted
Humphrey a COA on the issues whether (1) the district court’s dismissal
without prejudice was effectively a dismissal with prejudice in light of 28
U.S.C. § 2244(d)’s one-year filing period, and (2) the district court abused its
discretion in dismissing Humphrey’s § 2254 petition for want of prosecution. 1
      A district court’s sua sponte dismissal of a civil action is reviewed for an
abuse of discretion. See FED. R. CIV. P. 41(b); Link v. Wabash R.R. Co., 370
U.S. 626, 633 (1962); McNeal v. Papasan, 842 F.2d 787, 789-90 (5th Cir. 1988).
The district court in this case dismissed Humphrey’s petition without
prejudice. However, Humphrey’s claims challenging his December 2011 parole
revocation would now be time barred under § 2244(d)(1). Accordingly, the
dismissal of Humphrey’s petition was effectively with prejudice. See Stone v.
Thaler, 614 F.3d 136, 138 (5th Cir. 2010); Sealed Appellant v. Sealed Appellee,
452 F.3d 415, 417 (5th Cir. 2006).
      A dismissal with prejudice under Rule 41(b) “is appropriate where there
is a clear record of delay or contumacious conduct by the plaintiff, . . ., and
when lesser sanctions would not serve the best interests of justice.” Bryson v.
United States, 553 F.3d 402, 403 (5th Cir. 2008) (internal quotation marks and
citation omitted). In this case, the district court entered the order dismissing
Humphrey’s § 2254 petition for want of prosecution within three weeks of


      1 We also granted a COA on the issue whether the district court abused its discretion
in denying Humphrey’s postjudgment motions. Our decision on the first two COA issues
makes it unnecessary for us to reach the third issue.


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                                No. 13-20280

Humphrey having been released from prison. The passage of less than three
weeks without notification of an address change was insufficient, by itself, to
justify a dismissal with prejudice. See McNeal, 842 F.2d at 791. Additionally,
nothing in the record on appeal indicates that Humphrey’s failure to notify the
court in a more timely fashion that he had been released from prison was due
to anything other than negligence. See Lozano v Bosdet, 693 F.3d 485, 490 (5th
Cir. 2012).
      In light of the foregoing, we conclude that the district court abused its
discretion in sua sponte dismissing Humphrey’s § 2254 petition for want of
prosecution. We therefore VACATE the order of dismissal and REMAND this
case for further proceedings. See Lozano, 693 F.3d at 491; McNeal, 842 F.2d
at 794. We express no view on the merits of any issue.




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