United States Court of Appeals 

for the Fifth Circuit 

No. 21-40602 

Summary Calendar 

Lisa Marie Searcy, 

Plaintiff—Appellant, 

versus

Texas Attorney General Warren Kenneth Paxton, Jr.; 

Helen Truscott, Attorney; Jennifer Burnett, Attorney; Jana 

Wheeler, Attorney; Mark Aronowitz, Attorney; et al, 

Defendants—Appellees. 

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 3:21-cv-113 

Before Barksdale, Costa, and Engelhardt, Circuit Judges.

Per Curiam:*

Lisa Marie Searcy, Galveston County Jail inmate # 347183, filed an 

action under 42 U.S.C. § 1983 against, inter alia, Texas Attorney General 

*

 Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4. 

United States Court of Appeals 

Fifth Circuit 

FILED 

June 1, 2022 

Lyle W. Cayce 

Clerk 

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2 

Warren Kenneth Paxton, Jr., for various alleged violations of her 

constitutional rights related to pending state criminal charges and a childcustody case. Proceeding pro se, Searcy challenges: the dismissal without 

prejudice, under Federal Rule of Civil Procedure 41(b), of her action for want 

of prosecution because she did not comply with a district-court order to file 

an amended complaint on the court’s prisoner’s-civil-rights complaint form; 

and the district court’s denial of relief under Federal Rule of Civil Procedure 

60(b). 

A district court’s sua sponte dismissal is typically reviewed for abuse 

of discretion. E.g., McNeal v. Papasan, 842 F.2d 787, 789–90 (5th Cir. 1988). 

A heightened standard of review applies, however, where, as in this matter, 

plaintiff’s action likely would be barred by a statute of limitations if it were 

dismissed without prejudice. See Millan v. USAA Gen. Indem. Co., 546 F.3d 

321, 325–26 (5th Cir. 2008) (explaining “where the applicable statute of 

limitations likely bars future litigation, a district court’s dismissal . . . should 

be reviewed under the same heightened standard used to review a dismissal 

with prejudice”). In such instances, a Rule 41(b) dismissal is tantamount to 

a dismissal with prejudice. McNeal, 842 F.2d at 793 n.1 (explaining “when 

the statute of limitations on a claim has expired, a dismissal of that claim 

without prejudice is, in reality, a sanction no less harsh than a dismissal with 

prejudice”). A dismissal with prejudice is improper unless the record 

evidences “both (1) a clear record of delay or contumacious conduct by the 

plaintiff, and (2) that a lesser sanction would not better serve the best 

interests of justice”. Id. at 790. Failure to comply with “a few” orders 

ordinarily will not be sufficient to satisfy the heightened standard. See Berry 

v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191–92 & n.6 (5th Cir. 1992) 

(explaining “[g]enerally, where a plaintiff has failed only to comply with a 

few court orders or rules, we have held that the district court abused its 

discretion in dismissing the suit with prejudice”). 

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Here, there is no clear record of delay or contumacious conduct, or 

any evidence that the court considered a lesser sanction. See McNeal, 842 

F.2d at 790. Two days before the court’s deadline for filing an amended 

complaint on the correct form, Searcy mailed what, in essence, was an 

amended complaint on a different form. Therefore, given the absence of a 

clear record of delay or contumacious conduct, the dismissal of Searcy’s 

claim was an abuse of discretion. (As a result, we need not address the denial 

of the Rule 60(b) motion.) 

VACATED and REMANDED. 

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