FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 13, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-10595

Non-Argument Calendar

________________________

D. C. Docket No. 05-00186-CV-DHB-1

ANA M. ABREU-VELEZ, 

Plaintiff-Appellant, 

versus 

BOARD OF REGENTS OF THE 

UNIVERSITY SYSTEM OF GEORGIA, 

MEDICAL COLLEGE OF GEORGIA, 

DENNIS MARCUS, M.D., 

Defendants-Appellees. 

________________________

Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(September 13, 2007)

Before TJOFLAT, DUBINA and CARNES, Circuit Judges.
 As alleged in the complaint, Dr. Marcus, as head of the Department of Ophthalmology 1

of the Medical College of Georgia, hired appellant in August 2004 as his research assistant and

study coordinator. She objected to the manner in which Dr. Marcus planned to conduct a clinical

study on humans that involved radiation and invasive surgery to be performed in an operating

room. She expressed her objection, which concerned whether Marcus’s plan was safe for those

who would be exposed to the radiation, in a November 19, 2004 email to Dr. Marcus and others

who were to be involved in the clinical study. After receiving the email, Dr. Marcus terminated

appellant’s employment effective November 22, 2004. 

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PER CURIAM:

Appellant is a physician. In her complaint in this case against the Board of

Regents of the University System of Georgia, the Medical College of Georgia, and

Dr. Dennis Marcus (collectively “the Board”), she alleged that the Board pressured

her into quitting her job in retaliation for her exercise of First Amendment rights

and seeks relief under 42 U.S.C. § 1983. She also claimed that the Board violated 1

her rights under the Georgia Whistleblower Act, O.C.G.A. § 45-1-4. After the

Board answered the complaint and discovery commenced, appellant’s attorney

moved the district court to withdraw, and the court granted the motion. In its

order, the court directed appellant to notify the court within five days whether she

wished to proceed pro se or needed an extension of time to hire substitute counsel. 

Appellant failed to respond to the court’s order, so on January 29, 2007, the court

dismissed her case without prejudice for failure to prosecute. Appellant,

proceeding pro se, now appeals. The question before us is whether the district

court abused its discretion in dismissing appellant’s case. Goforth v. Owens, 766
3

F.2d 1533, 1535 (11th Cir. 1985). 

The limitations period for claims brought under 42 U.S.C. § 1983 is the

personal injury limitations period of the forum state. Rozar v. Mullis, 85 F.3d 556,

561 (11th Cir. 1996). Personal injury claims in Georgia must be filed “within two

years after the right of action accrues.” Id. at 560-61; O.C.G.A. § 9-3-33. “The

general federal rule is that the statute of limitations does not begin to run until the

facts which would support a cause of action are apparent or should be apparent to a

person with a reasonably prudent regard for his rights.” Rozar, 85 F.3d at 561-62

(internal quotation omitted). Here, appellant’s alleged injury resulted from her

termination, which occurred on November 22, 2004. Thus, assuming that no

tolling occurred, the limitations period for appellant’s § 1983 claim expired

effective November 22, 2006. 

Where a dismissal “has the effect of precluding [plaintiff] from refiling [her]

case due to the running of the statute of limitations. . . . [t]he dismissal [is]

tantamount to a dismissal with prejudice.” Justice v. United States, 6 F.3d 1474,

1482 n.15 (11th Cir. 1993); see also Burden v. Yates, 644 F.2d 503, 505 (5th Cir.

Unit B May 1981) (“where . . . . the statute of limitations prevents or arguably may

prevent a party from refiling his case after it has been dismissed, we fail to see how

a dismissal without prejudice is any less severe a sanction than a dismissal with
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prejudice.”) (internal quotation and citation omitted). “[W]here the dismissal is

without prejudice, but the applicable statute of limitations probably bars further

litigation, the standard of review of the District Court's dismissal should be the

same as is used when reviewing a dismissal with prejudice.” Boazman v.

Economics Laboratory, Inc., 537 F.2d 210, 213 (5th Cir. 1976). 

“Dismissal with prejudice, whether on motion or sua sponte, is an extreme

sanction that may be properly imposed only when: ‘(1) a party engages in a clear

pattern of delay or willful contempt (contumacious conduct); and (2) the district

court specifically finds that lesser sanctions would not suffice.’” Betty K

Agencies, LTD v. M/V Monada, 432 F.3d 1333, 1338 (internal citations omitted).

A dismissal with prejudice is a "drastic remedy to be used only in those situations

where a lesser sanction would not better serve the interests of justice." Justice, 6

F.3d at 1482 n.15 (quotations omitted). 

Dismissal with prejudice is “improper unless and until the district court

finds a clear record of delay or willful misconduct and that lesser sanctions are

inadequate to correct such conduct.” Betty K. Agencies, 432 F.3d at 1339. 

Moreover, “findings satisfying both prongs of [the] standard are essential before

dismissal with prejudice is appropriate,” and district courts must make these

findings “because the sanction of dismissal with prejudice is so unsparing . . . . and
5

we strive to afford a litigant his or her day in court, if possible.” Id. 

A district court’s consideration of lesser sanctions “need not be explicit.” 

Gratton v. Great Am. Communications., 178 F.3d 1373, 1374 (11th Cir. 1999). 

Nevertheless, while this court has “occasionally inferred such a finding, as where

lesser sanctions would have ‘greatly prejudiced’ defendants, it has ‘never

suggested that the district court need not make that finding . . . .’” Kilgo v. Ricks,

983 F.2d 189, 193 (11th Cir. 1993). “Mere delay will not suffice; ‘[a] finding of

such extreme circumstances necessary to support the sanction of dismissal must, at

a minimum, be based on evidence of willful delay; simple negligence does not

warrant dismissal.’”). Kilgo, 983 F.2d at 192-3 (citations omitted). 

In this case, the district court failed to make findings sufficient to enable us

to assess whether it abused its discretion. On its face, the court’s order stated that

the dismissal was without prejudice. Assuming, however, that the two-year

limitations period has expired, the dismissal was effectively with prejudice. The

court did not make a finding that appellant’s failure to comply with its order was “a

clear pattern of delay or willful contempt.” See Betty K Agencies, 432 F.3d at

1338 (internal citations omitted). Nor did the district court explicitly consider

whether a lesser sanction would prejudice the defendants. See Kilgo, 983 F.2d at

193. We therefore vacate the court’s decision and remand the case for further
 In her brief, appellant raises issues not presented to the district court. Hence, we do not 2

consider them.

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proceedings not inconsistent herewith.2

VACATED and REMANDED.