United States Court of Appeals

for the Fifth Circuit ____________

No. 23-30707

Summary Calendar

____________

Elvelyn Smith, on behalf of her minor son, 

Plaintiff—Appellant, 

versus

Bogalusa City; Bogalusa Police Department; Bogalusa 

City Schools, 

Defendants—Appellees. 

______________________________

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:22-CV-3380

______________________________

Before Davis, Willett, and Oldham, Circuit Judges.

Per Curiam:*

Plaintiff-Appellant, Elvelyn Smith, appeals the district court’s order 

dismissing her complaint without prejudice for failure to prosecute under 

Federal Rule of Civil Procedure 41(b). We AFFIRM. 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

March 18, 2024

Lyle W. Cayce

Clerk

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I.

On September 20, 2022, Smith filed a complaint, on behalf of her 

minor child, against the city of Bogalusa, the Bogalusa Police Department, 

and the Bogalusa School Board (collectively “Defendants”). Smith’s 

complaint alleges that on September 21, 2021, police officers with the 

Bogalusa Police Department “violently attacked” her son at the Bogalusa 

High School. The complaint additionally states that the Bogalusa School 

Board failed to protect Smith’s son, who at the time of the alleged beating 

was a special needs student at the high school. Smith asserts claims under 42 

U.S.C. § 1983 for excessive force, state law claims for battery, intentional 

infliction of emotional distress, and negligence, and claims under the 

Americans with Disabilities Act (“ADA”). 

On February 16, 2023, Smith’s counsel, Carl Perkins, failed to call into 

a scheduling conference set by the district court. Later that day, the district 

court issued an order continuing the scheduling conference to March 2, 2023, 

“[d]ue to the unavailability of counsel for plaintiff.” The court’s order also 

advised that “[f]ailure of plaintiff’s counsel to appear may result in 

DISMISSAL of the case, without any further notice, for failure to 

prosecute.” A few days later, Perkins informed the court that he intended to 

withdraw as counsel and have new counsel enroll. However, by March 2, no 

additional counsel for Plaintiff had enrolled, and Perkins again did not call 

into the rescheduled conference. 

On March 6, 2023, the district court ordered Smith to submit in 

writing, within fourteen days, why her case should not be dismissed for 

failure to prosecute. The court warned that failure to comply with this show 

cause order may result in the dismissal of Smith’s case without further 

notice. Rather than reply to the order, Smith filed a motion to enroll Lillian 

Ratliff as additional counsel of record, explaining that Perkins, her counsel of 

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record, was undergoing “intense radiation treatment for prostate cancer in 

Texas” and has “not had the opportunity to file the documents to . . . 

withdraw from this matter.” The district court granted Smith’s motion to 

enroll additional counsel and scheduled a conference for April 27, 2023. Due 

to a conflict in the court’s calendar, the conference was reset for May 4, 2023. 

On May 4, neither party called into the scheduling conference. 

On May 15, 2023, the district court sua sponte dismissed Smith’s 

claims for want of prosecution under Rule 41(b). The dismissal was without 

prejudice. The court noted that Smith’s counsel had failed to attend three 

scheduling conferences, causing the case to remain stagnant without any 

deadlines. And although the court explained it was “sympathetic to Mr. 

Perkins’ illness, he is still enrolled in this matter and maintains a duty to his 

client and to this Court,” and that Smith’s “additional counsel, Lillian 

Ratliff, also failed to appear at the most recent scheduling conference.” 

In response, Plaintiff’s additional counsel, Ratliff, filed a motion to 

reconsider or, in the alternative, a motion for leave to refile and to waive the 

filing fee, explaining that she called in twenty-one minutes late to the May 4 

conference because she was stuck in “congested traffic” and unable “to exit 

the interstate in a safe manner.” The district court denied the motion. Smith

timely appealed. 

II.

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

prosecute or comply with a court order with or without notice to the parties.

1

 

We review such dismissals under Rule 41(b) for abuse of discretion.2 When 

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1 Fed. R. Civ. P. 41(b); McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 

1988) (per curiam).

2 Campbell v. Wilkinson, 988 F.3d 798, 801 (5th Cir. 2021).

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a district court dismisses a suit without prejudice, we “apply a less stringent 

standard of review . . . , because the plaintiff would be able to file his suit 

again.”3

 However, “[w]hen a dismissal is without prejudice but the 

applicable statute of limitations probably bars future litigation, our 

examination is searching, and review the dismissal as we would a dismissal 

with prejudice.”4 Here, the district court specified that dismissal was 

without prejudice, and Smith does not contend that the statute of limitations 

has run on any of her claims.5

 To the contrary, Smith filed a motion for 

reconsideration of the dismissal or alternatively for leave to refile the suit, 

suggesting that her claims are not time-barred. Accordingly, we apply the 

less exacting standard of review to the district court’s dismissal.

6

On appeal, Smith argues that her counsel had “good cause” for not 

attending the scheduling conferences and that her counsel’s twenty-oneminute delay in calling into the third rescheduled conference is not grounds 

for dismissal for failure to prosecute. Additionally, Smith argues that a 

district court may not dismiss a case for failure to prosecute unless the case 

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3 Boazman v. Econ. Lab’y, Inc., 537 F.2d 210, 212–13 (5th Cir. 1976).

4 Griggs v. S.G.E. Mgmt., L.L.C., 905 F.3d 835, 844 (5th Cir. 2018) (internal 

quotation marks and citation omitted).

5 A plaintiff “forfeit[s] the argument that a more exacting standard of review 

applies” to a Rule 41(b) dismissal without prejudice based on the statute of limitations by 

failing “to describe which of their claims specifically are time-barred, how they are timebarred, and why they are time-barred.” Jones v. Meridian Sec. Ins. Co., No. 23-10148, 2023 

WL 6518145, at *3 (5th Cir. Oct. 5, 2023) (per curiam) (unpublished).

6 McCullough, 835 F.2d at 1126–27 (applying the abuse of discretion standard 

because the district court order was without prejudice and there was “no indication that 

the statute of limitations on [plaintiff’s] action has run”); see also Francois v. City of Gretna, 

668 F. App’x 574, 575 n.1 (5th Cir. 2016) (per curiam) (unpublished) (refusing to review 

the district court’s dismissal without prejudice under the heightened dismissal with 

prejudice standard because plaintiffs did not contend the statute of limitations had run on 

their claims).

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has been delayed for six months and the court gives notice to the parties. 

Both of Smith’s arguments lack merit.

The district court acted within its discretion by dismissing Smith’s 

case without prejudice. In McCullough v. Lynaugh, this Court affirmed a 

district court’s dismissal without prejudice due to a pro se plaintiff’s failure 

to attend a status conference, even though the plaintiff had up to that point 

been conscientiously litigating his case.

7

 In affirming the dismissal, we 

emphasized that “[f]ailure to attend a hearing is a critical default,” and that 

in “such circumstances trial courts must be allowed leeway in the difficult 

task of keeping their dockets moving.”8 Here, the grounds for dismissal are 

even stronger. Specifically, unlike in McCullough, Smith’s counsel missed 

three conferences and did not respond to the court’s show cause order.9 

Such failures are particularly notable given that counsel received two 

warnings from the court that failure to appear could result in the dismissal of 

the case without further notice. Moreover, as in McCullough, because the 

dismissal is without prejudice, Smith “has not suffered prejudicial harm 

resulting from the dismissal.”10

For these reasons, the district court did not abuse its discretion in 

dismissing Smith’s complaint without prejudice under Rule 41(b). 

Accordingly, we AFFIRM. 

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7 McCullough, 835 F.2d at 1126–27; see also Francois, 668 F. App’x at 575–76 

(concluding the district court did not abuse its discretion in dismissing pro se plaintiffs’ suit 

for failure to appear at a status conference).

8 McCullough, 835 F.2d at 1127.

9 Although Smith’s appellate brief focuses on the reasons her counsel did not 

attend the three scheduling conferences, she does not address the fact that her counsel 

never responded in writing to the district court’s show cause order.

10 Id. 

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