* Pursuant to 5 T H C IR

. R. 47.5, the court has determined that th i s

opinion s h ould not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

August 24, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-61063

Summary Calendar

EZELL WASH; ET AL.,

Plaintiffs,

EZELL WASH; KENNETH DENNIS; DESMOND EARL PHILLIPS;

BOBBY CALDWELL; JIMMY POWELL; ROBERT PRICE; GLENDALE SONES;

RICHARD SIMS, JR.; JAMES REED,

Plaintiffs-Appellants,

versus

ROBERT JOHNSON, Commissioner; JAMES ANDERSON; WALTER BOOKER;

W. L. HOLMAN; ROBERT ARMSTRONG; GENE CROCKER; EARL JACKSON;

JESSIE STREETER; CHRISTOPHER EPPS; LARRY KEYS; PAMELY LEE;

CHARLES THOMAS; GLENN ADAMS; WILLIE WALKER; CASE MANAGER JACKSON;

SAM WEBB; JACQILYN MAXWELL; MAUD IRBY; JOE CONNERS; FRANK

GRAMMAR; LARRY HARDY; JOHN DOE(S), Liability Surities/Bonding

Companies of All Defendants,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:00-CV-315-P-D

Before HIGGINBOTHAM, JONES, and BARKSDALE, Circuit Judges.

PER CURIAM: *

The appellants, pro se plaintiffs in a civil rights suit

filed under 42 U.S.C. § 1983, appeal the dismissal of their suit2

under F ED

. R. C IV

. P. 41(b) for failure to comply with an order of

the court. The appellants’ argument that the appellees’ brief

should be stricken is without merit inasmuch as the brief was

mailed prior to the deadline and conformed with F ED

. R. A PP

. P. 28.

Rule 41(b) authorizes the sua sponte dismis s al with

prejudice of an action for the failure of the plaintiff to

prosecute. Rule 41(b) dismissals are reviewed for abuse of

discretion. Dorsey v. Scott Wetzel Servs. , 84 F.3d 170, 171 (5th

Cir. 1996). Rule 41(b) dismissals, however, are affirmed “only

upon a showing of a clear record of delay or contumacious conduct

by the plaintiff,

. . . and where lesser sanctions would not serve

the best interest of justice.” Id.

The instant case does not reveal a clear record of delay

or contumacious conduct on the part of the pro se plaintiffs. Soon

after the district court stayed discovery pending resolution of the

defendants’ qualified immunity defenses, the plaintiffs attempted

to address those defenses by pointing to their fact-specific

complaint and amended complaint. Additionally, prior to the

court’s January 4, 2002, deadline, the plaintiffs sought to declare

the defendants’ third, fifth, a nd sixth immunity defenses

inappli cable as a matter of law. In that filing, the plaintiffs

explained that the only remaining affirmative defense was the

defendants’ claim to qualified immunity under federal law and that

they needed access to their legal files, which the defendants had

denied, to prepare such a response.3 The plaintiffs’ June 19, 2002, request for more time was

also filed prior to the district court’s July 3, 2002, deadline.

T he plaintiffs iterated that they needed their legal files to

comply with the court’s order to file a reply to the defendants’

immunity defenses. Thus, although the plaintiffs did not file the

reply ordered by the district court by the deadlines that the

district court had extended to them, they filed pleadings prior to

the deadlines explaining why they were unable to do so.

As noted above, this court affirms Rule 41(b) dismissals

only when lesser sanctions would not serve the best interest of

justice. D orsey

, 8 4 F.3d at 171. The district court in the

instant case, as a lesser sanction, could have simply denied the

plaintiffs’ request for an extension of time to file the reply

ordered by the district court pursuant to Schultea v. Wood

, 47 F.3d

1427, 1434 (5th Cir. 1995)(en banc), without dismissing the

plaintiffs’ complaint.

Additionally, in determining whether to affirm a

Rule 41(b) dismissal, this court looks to the degree of actual

prejudice to the defendant arising from the plaintiff’s failure to

comply with a court order. R ogers v. Kroger Co.

, 669 F.2d 317, 320

& n.5 (5th Cir. 1982); see also Pardee v. Moses

, 605 F.2d 865, 867

(5th Cir. 1979). In this case, the plaintiffs’ complaint and

amended complaints are fact -specific as to how they believe they

were harmed by the defendants’ conduct; whether the pleadings meet

the heightened pleading requirements that S chultea sought to4

enforce, and whether they will suffice to respond to the district

court’s order, have yet to be decided.

I n light of the plaintiffs’ efforts to address the

district court’s order to file a Schultea reply, the availability

of a lesser sanction, and the lack of p rejudice sustained by the

defendants, the district court’s Rule 41(b) dismissal is VACATED

,

and the case is REMANDED to the district court for further

proceedings.

The motion of Gary Moore asking this court to reconsider

and vacate the dismissal of his appeal for his failure to pay the

filing fee in full is DENIED

.

VACATED and REMANDED ; MOTION DENIED

.