                                                                                     United States Court of Appeals
                                                                                              Fifth Circuit
                                                                                            F I L E D
                                                     In the                                 August 31, 2004
                           United States Court of Appeals                               Charles R. Fulbruge III
                                         for the Fifth Circuit                                  Clerk

                                            ___________________

                                                m 04-60153
                                              Summary Calendar
                                            ___________________



                                              JANE C. WRIGHT,

                                                                   Plaintiff-Appellant,

                                                    VERSUS

                       TYRUS ROBINSON; CARLOS ASHFORD; STEVE GAY;
                              BL DEVELOPMENT CORPORATION,
                               DOING BUSINESS AS GRAND CASINO TUNICA,

                                                                   Defendants-Appellees.


                                            ___________________

                               Appeal from the United States District Court
                                 for the Northern District of Mississippi
                                            m 2:02-CV-310
                                         ___________________



Before DAVIS, SMITH, and DENNIS,                             Jane Wright sued her former employer and
  Circuit Judges.                                         various of its employees for employment dis-
                                                          crimination. She appeals, pro se, the dismissal
JERRY E. SMITH, Circuit Judge.*                           for failure to prosecute and failure to obey a


   *                                                          *
     Pursuant to 5TH CIR. R. 47.5, the court has de-           (...continued)
termined that this opinion should not be published and    is not precedent except under the limited circum-
                                       (continued...)     stances set forth in 5TH CIR. R. 47.5.4.
court order. Finding no error, we affirm.              ronment that had been created, but made no
                                                       effort to provide Wright with a working envi-
                       I.                              ronment free of harassment and retaliation.
   Wright is black, aged fifty-two. Defendant,
BL Development Corporation, doing business                Following the complaint against Robinson
as Grand Casino Tunica (“the Grand”), was              and Ashford, Wright received an unfavorable
her employer. Tyrus Robinson, Carlos Ash-              performance evaluation affecting her wages
ford, and Steve Gay were Wright’s managers             and placing her on probation. These negative
at The Grand and as such are co-defendants.            actions were taken within a two-week period
Wright began working at the Grand as a Slot            of the complaint. Before the complaint, she
Technician in 2001. She was the only female            had not received any performance complaints
and the oldest person in her group.                    or other disciplinary action.

    Wright sued, alleging title VII sexual har-           Next, Terry Renault, the lead slot techni-
assment, discrimination on the basis of sex, re-       cian manager, asked Wright whether she was
taliation, and violations of the Age Discrim-          having any problems. Wright again com-
ination in Employment Act. She alleges that            plained of the sexually charged hostile work
she was performing a coin test with Ashford            environment. Renault conducted no investiga-
when Robinson bluntly stated that despite his          tion and instead sought out negative informa-
small statute, he had a “big dick.” Thereafter,        tion regarding Wright.
Ashford responded that “when you said that,
Jane looked like she wanted to jump on top of             Wright was given an ultimatum by Joy Cri-
you.”                                                  er of Human Resources, who stated that if
                                                       Wright withdrew her complaints, Crier would
   Wright complained to Robinson the next              discard the negative information Renault had
day about the inexcusable behavior that had            collected. Furthermore, Jerry Artiglierre, vice-
produced a sexually charged hostile work en-           president of slots, told Wright that he would
vironment and left her feeling embarrassed and         investigate her complaints, after which he told
degraded. One week later, Wright learned               Robinson to “fix the matter.”
from Beth Daniels, Manager of Human Rela-
tions, that someone else had filed a complaint            Subsequently, Robinson told Wright that
against Robinson and Ashford on behalf of              she wo uld be placed on probation for ninety
Wright.                                                days, but she would also receive an increase in
                                                       salary. Thereafter, Wright resigned and was
    The supervisors of Robinson and Ashford            replaced by a male less than forty years of age.
were repeatedly told about Robinson’s and
Ashford’s inappropriate behavior but failed to                               II.
take action to protect Wright and other female             Wright consented to assignment to a mag-
employees. Specifically, no action was taken           istrate judge, who dismissed the case with pre-
against Robinson and Ashford to prevent them           judice on February 9, 2004, for failure to pro-
from sexual harassment. Wright avers that at           secute and for failure to obey an order that
all times, the Grand either knew or reasonably         granted defendants’ motion to compel Wright
should have known of the hostile work envi-            to respond to discovery requests and submit to


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a deposition. Wright had failed to respond to         Christian, 808 F.2d 1132, 1137 (5th Cir.
discovery requests. In addition, her initial          1987).
attorney, Caldwell, was forced to transfer the
case to another lawyer because Caldwell had               Under § 636(e)(4), in any case in which a
been barred from practicing law. Thereafter,          magistrate judge presides with the consent of
Wright failed to respond to attempts to contact       the parties, he may exercise the civil contempt
and communicate with her made by Labovitz,            authority of the district court. In addition, one
her new attorney. Consequently, he resigned,          of the sanctions authorized by FED. R. CIV. P.
whereupon the magistrate judge found that             16(f), by reference to FED. R. CIV. P. 37, is
Wright lost interest in the suit. Wright ap-          dismissal. Callip v. Harris County Child
pealed under FED. R. CIV. P. 73(c).                   Welfare Dep’t, 757 F.2d 1513, 1518 (5th Cir.
                                                      1985). The rule merely makes explicit a dis-
                      III.                            cretionary power to control the expeditious
    Wright’s pro se brief raises, inter alia, a       disposition of docketed cases that appellate
jurisdictional question on appeal. She asks,          courts have long recognized to be an inherent
“Whereas pursuant to 28 U.S.C.A. 636(c) and           attribute of federal district courts. Id. Fur-
Fed. R. Civ. P. 73, a Title VII Civil Case is         thermore, FED. R. CIV. P. 41(b) provides that
referred to a Magistrate Judge; and where the         for failure of the plaintiff to prosecute or to
referral does not appear to specifically and          comply with these rules or any order of the
directly grant the Magistrate Judge the author-       court, a defendant may move for dismissal of
ity to make and enter final ruling and judg-          an action or of any claim.
ments on dispositive pretrial motions such as
the exercise of contempt powere, may a Mag-               An appeal from an involuntary dismissal
istrate Judge exercise such contempt powers,          with prejudice for failure to prosecute or to
without abuse of discretion and the statue            obey the orders and rules of the district court
[sic]?                                                is reviewed for abuse of discretion. Morris v.
                                                      Ocean Sys., Inc., 730 F.2d 248, 251 (5th Cir.
   The parties, however, consented to the ex-         1984). The magistrate judge granted defen-
ercise of jurisdiction by a magistrate judge.         dants’ motion to compel and ordered Wright
Under 28 U.S.C. § 636(c), upon consent of             to respond to written discovery requests with-
the parties, a magistrate judge may conduct all       in seven days and to submit to a deposition
proceedings in a civil matter and may order the       scheduled to take place within thirty days. In
entry of judgment; the magistrate judge acts in       its order, the court warned Wright that failing
the capacity of a district judge. McGinnis v.         to comply in any respect would put her at risk
Shalala, 2 F.3d 548, 551 (5th Cir. 1993). Be-         of immediately subjecting herself to the full
fore commencing the trial of any civil case in        panoply of rules 37(d) and 41(b).
which a magistrate judge is to preside pursuant
to the authority of § 636(c), the magistrate             Wright did not respond or oppose the mo-
judge must inquire on the record of each party        tion, so defendants moved to dismiss on the
whether it has filed consent to the magistrate        ground that Wright had failed to comply with
judge’s presiding and must receive an                 the order regarding discovery and had failed
affirmative answer from each on the record            adequately to prosecute her case. The court
before proceeding further.          Archie v.         found that Wright had lost interest in the


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lawsuit.                                                we were to make an exception to the finality
                                                        of judgment each time a hardship was visited
   Wright admits that she consented to the              on the unfortunate client of a negligent or
referral to a magistrate judge. Accordingly,            inadvertent attorney, the meaningful finality of
her argument that the judge was without au-             judgments would largely disappear. Pryor,
thority to dismiss her case with prejudice is           769 F.2d at 289.
without merit. Moreover, the court did not
abuse its discretion by dismissing the case.                We affirm a dismissal with prejudice for
                                                        failure to prosecute when (1) there is a clear
   Wright erroneously cites Eley v. Heckler,            record of delay or disobedient conduct by the
734 F.2d 724 (11th Cir. 1984), to challenge             plaintiff and (2) the district court has expressly
the magistrate judge’s authority to dismiss.            determined that lesser sanctions would not
Eley states that a magistrate judge is restricted       prompt diligent prosecution, or (3) the record
to making recommendations under 28 U.S.C.               shows that the district court employed lesser
§ 636(b)(1) when not vested with such                   sanctions that proved to be futile. Callip, 757
decisionmaking power. Id. The case was dis-             F.2d at 519. Although Wright attempts to
tinguished in United States v. Johnston, 258            place the responsibility on her attorney, she is
F.3d 361 (5th Cir. 2001), stating that Congress         not without blame.
intended magistrate judges to exercise juris-
diction on consent of the parties. Specifically,            Specifically, her second counsel, Labovitz
Congress amended the Federal Magistrates                told the court that Wright had failed to re-
Act in 1979 to include § 636(c) to improve              spond to his attempted communication. Con-
access to the federal courts. Id.                       sequently, Labovitz submitted a motion to
                                                        withdraw, to which Wright did not respond or
   In addition, Wright cites United States v.           object. In addition, Wright failed to cooperate
First Nat’l Bank, 628 F.2d 871 (5th Cir.                in the discovery process, causing defendants
1980), to illustrate the potential limitations of       irrefutable harm in failing to gather evidence.
a magistrate judge’s power. That case, how-             The record demonstrates that Wright therefore
ever, was a tax dispute concerning civil and            intentionally contributed to the delay that
criminal matters on which the district court            caused actual prejudice to the defendants. Ac-
properly had jurisdiction.                              cordingly, the magistrate judge did not abuse
                                                        his discretion in dismissing the case with
                       IV.                              prejudice.
   Wright urges that her counsel was respon-
sible for the delay that resulted in the dismiss-                              V.
al. The mistakes of counsel in civil litigation            As a pro se litigant, Wright should be ac-
are chargeable to the client, however, irrespec-        corded leniency if the dismissal was procedural
tive of how unfair this may seem. Pryor v.              and she has grounds for relief. Moawad v.
United States Postal Serv., 769 F.2d 281, 288           Childs, 673 F.2d 850, 851 (5th Cir. 1982).
(5th Cir. 1985). Furthermore, parties have a            Therefore, we will determine whether Wright
duty to inquire periodically into the status of         has displayed grounds for a FED. R. CIV. P.
their litigation. Latham v. Wells Fargo Bank,           60(b)(1) motion.
987 F.2d 1199, 1201-1202 (5th Cir. 1993). If


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   Under rule 60(b)(1), a court may relieve a           arguments should have been raised in the
party from a final judgment or order for “mis-          district court.
take, inadvertence, surprise, or excusable ne-
glect.” The extraordinary relief afforded by               Contrary to Wright’s arguments, she had a
rule 60(b) requires that the moving party make          duty to maintain control of her case at all
a showing of unusual or unique circumstances            times. She took no action to dispute Labo-
justifying such relief. Pryor, 769 F.2d at 286.         vitz’s claim of representation. In addition, she
The decision to grant or deny rule 60(b) relief         had a duty to reply to communications from
is within the sound discretion of the district          Labowitz or to replace him. Consequently,
court and will be reversed only for abuse of            this case is not one of unusual or unique cir-
discretion. Provident Life & Accident Ins. Co.          cumstance deserving of relief under rule 60(b).
v. Goel, 274 F.3d 984, 997 (5th Cir. 2002).
                                                           AFFIRMED.
    Wright’s situation is analogous to that of
the plaintiff in James v. Rice Univ., 80 Fed.
Appx. 907 (5th Cir. 2003), cert. denied, 124
S. Ct. 2023 (2004). There, the title VII case
was dismissed with prejudice because plain-
tiff’s attorney had failed to comply with dates
set out in the joint case management plan,
failed to provide the required documents, and
failed to appear for a scheduled conference.
Id. at 909. Counsel had pleaded with the court
that in addition to having three toddlers to care
for, her mother had been stricken with serious
health problems, causing her self-admitted
errors. Id. Although this court found sympa-
thy with counsel’s plight, we held that the
situation did not constitute the type of “un-
usual or unique circumstance” justifying rule
60(b) relief. Id. at 911.

   Similarly, although we too find sympathy
with the unfortunate circumstances with which
Wright was faced, her situation does not
justify rule 60(b) relief. Specifically, she
admonishes that she was unduly prejudiced
because her initial attorney was the subject of
disciplinary action. Furthermore, she claims
that her attorney was replaced by Labovitz
without her permission. Wright contends that
she was victimized by her initial attorney as
well as by Labovitz. Yet, she admits that these


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