* 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should not be published and is not precedent except under the limited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.

United States Court of Appeals

Fifth Circuit

FILED

September 19, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-10014

Summary Calendar

REZA VAFAIYAN

Plaintiff-Appellant

v.

TARGET INC; MIKE ELLSWORTH; OFFICER WILLIAMS

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:06-CV-1619

Before WIENER, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Reza Vafaiyan, Texas prisoner # Y8906, proceeding pro se and in forma

pauperis (IFP), appeals the district court’s dismissal of his 42 U.S.C. § 1983

complaint. 

In August 2006 Vafaiyan filed a § 1983 complaint regarding events that

transpired on August 9, 2004, and thereafter. In September 2006, the district

court issued a deficiency order indicating that the filing fee had not been paid.

The district court mailed an IFP order to Vafaiyan and ordered that Vafaiyan
No. 07-10014

2

cure the deficiency within 30 days. On October 19, 2006, the magistrate judge

indicated that Vafaiyan had failed to comply with the deficiency order and

recommended that the action be dismissed without prejudice for want of

prosecution pursuant to FED. R. CIV. P. 41(b). Vafaiyan did not object to the

report and recommendation. In November 2006 the district court accepted the

MJ’s recommendation and dismissed the action.

Vafaiyan argues that the district court’s order deprives him of justice

because because the Texas two year statute of limitations now bars his claims.

He also contends that he did not receive the district court’s order.

A district court may sua sponte dismiss an action for failure to prosecute

or to comply with any order. Rule 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, 975F.2d 1188, 1191 (5th Cir. 1992). In Vafaiyan’s

case, although the district court dismissed Vafaiyan’s suit without prejudice,the

dismissal may have effectively been with prejudice due to the 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 is 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 the record shows that

the district court employed lesser sanctions that proved to be futile. Berry, 975

F.2d at 1191.
No. 07-10014

3

There is not a clear record of purposeful delay or contumacious conduct by

Vafaiyan. The district court’s deficiency order was issued on September 7, 2006,

and the district court dismissed the proceeding less than two months later, on

November 3, 2006. “Generally, where a plaintiff has failed only to comply with

a few court orders or rules, [this court has] held that the district court abused its

discretion in dismissing the suit with prejudice.” Berry, 975 F.2d at 1192 and

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. at 1192 and n.7. Finally, the record

does not establish the existence of the usual aggravating factors. See Sealed

Appellant v. Sealed Appellee, 452 F.3d 415, 418 (5th Cir. 2006).

Accordingly, the district court's dismissal of Vafaiyan’s suit was an abuse

of discretion. The district court's judgment is VACATED and the case is

REMANDED for further proceedings.