IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-30206

RON JOHNSON,

 Plaintiff - Appellant

v.

VICTOR E. JONES, JR., individually & in his official capacity as Sheriff for 

Natchitoches Parish; PATRICK DAVIS, individually & in his official capacity 

as Lieutenant for the Natchitoches Parish Sheriff's Office; DEAN DOVE, 

individually & in his official capacity as Warden for the Natchitoches Parish 

Detention Center, 

 Defendants - Appellees

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:17-CV-1187

Before DAVIS, SMITH, and COSTA, Circuit Judges.

PER CURIAM:*

Ron Johnson appeals the with-prejudice dismissal of his civil rights 

lawsuit. The district court dismissed the case as a sanction under Federal 

Rules of Civil Procedure 37(b)(2) and 41(b). Although the district court was 

understandably frustrated with plaintiff’s late and incomplete discovery 

 

* Under 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

December 13, 2019

Lyle W. Cayce

Clerk

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responses, not all the requirements for the “drastic sanction” of dismissal with 

prejudice existed. See Moore v. CITGO Ref. & Chems. Co., L.P., 735 F.3d 309, 

315 (5th Cir. 2013). We thus vacate the judgment and remand for further 

proceedings.

I.

In September 2017, Johnson sued Victor Jones, the Natchitoches Parish 

Sheriff; Patrick Davis, one of Jones’s lieutenants; and Dean Dove, the 

Natchitoches Parish Detention Center Warden. According to the complaint, 

Davis physically attacked Johnson—a Detention Center inmate—while he was 

wearing hand and feet restraints. A month into the suit, the defendants served 

Johnson with interrogatories, requests for production, and authorizations to 

obtain his medical and employment records. Johnson’s counsel, believing the 

requests were premature because they were served before the Rule 26(f)

scheduling conference, did not respond.

Having still not received responses by February 2018, the defendants 

moved to compel and sought sanctions. Johnson finally responded to the 

discovery requests on May 15, 2018, just hours before the magistrate judge 

heard argument on the defendants’ motion. At the hearing, the defendants 

withdrew their request for sanctions.

But the motion to compel was still pending. Finding that Johnson’s 

responses were “evasive and incomplete,” the magistrate judge granted the 

motion to compel. The magistrate judge ordered Johnson to supplement his 

interrogatory responses and to produce the requested documents by June 21, 

2018. The magistrate judge also ordered Johnson to sign medical and 

employment record authorizations by the same date.

Johnson failed to do so. Relying on that failure, the defendants moved 

for dismissal with prejudice under Rules 37(b)(2) and 41(b). That motion 

prompted Johnson to supplement his discovery responses.

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Five months later, the magistrate judge ruled that Johnson’s 

supplemental responses did not comply with the May 2018 discovery order and 

ordered additional briefing on the motion to dismiss. Johnson provided the 

requested authorizations as attachments to his brief.

Even though Johnson had finally provided the authorizations, the 

magistrate judge recommended that the motion to dismiss be granted. The 

recommendation cited both Federal Rule 37(b)(2), the rule specifically 

governing discovery violations, and Rule 41(b), the general rule governing 

dismissal for failure to prosecute or comply with court orders. The magistrate 

judge noted that Johnson had violated the discovery order by submitting 

incomplete and untimely responses. He also observed that Johnson’s discovery 

cooperation “was only prompted by either a motion by [the] [d]efendants or the 

Court’s orders,” and he failed to verify his original or supplemental

interrogatory responses. The magistrate judge recognized, however, that it 

was unclear whether the violations were the fault of Johnson or his attorney.

Adopting the magistrate judge’s recommendation, the district court 

entered final judgment dismissing Johnson’s complaint with prejudice.

II.

We review for abuse of discretion a district court’s dismissal with 

prejudice under Rules 37(b)(2) or 41(b). Griggs v. S.G.E. Mgmt., L.L.C., 905 

F.3d 835, 844 (5th Cir. 2018) (Rule 41(b)); FDIC v. Conner, 20 F.3d 1376, 1380 

(5th Cir. 1994) (Rule 37(b)(2)). Dismissal with prejudice “is a severe sanction 

that implicates due process.” Moore, 735 F.3d at 315. This “draconian remedy” 

thus should “not be used lightly, and should be used . . . only under extreme 

circumstances.” Conner, 20 F.3d at 1380 (quoting EEOC v. Gen. Dynamics 

Corp., 999 F.2d 113, 119 (5th Cir. 1993)).

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III.

A.

Because a dismissal with prejudice punishes the party bringing the suit, 

that sanction may issue under Rule 37(b)(2) only if “the violation of the 

discovery order [was] attributable to the client instead of the attorney.” 

Conner, 20 F.3d at 1380. Not only is that finding lacking here, but the 

magistrate judge acknowledged that he could not determine whether the client 

was responsible for any of the discovery problems. Rule 37(b)(2) thus does not 

support the dismissal with prejudice. Id.; see also Oprex Surgery (Baytown), 

L.P. v. Sonic Auto. Emp. Welfare Benefit Plan, 704 F. App’x 376, 381 (5th Cir. 

2017) (per curiam).

B.

That leaves Rule 41(b). Rule 41(b) allows dismissal with prejudice “only 

where there is a showing of (a) a clear record of delay or contumacious conduct 

by the plaintiff, and (b) where lesser sanctions would not serve the best 

interests of justice.” Gates v. Strain, 885 F.3d 874, 883 (5th Cir. 2018) (quoting 

Morris v. Ocean Sys., Inc., 730 F.2d 248, 252 (5th Cir. 1984)). “Generally, 

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.” Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 n.6 (5th 

Cir. 1992) (collecting cases); see also Morgan v. Ams. Ins. Co., 759 F. App’x 255, 

257–58 (5th Cir. 2019).

Despite the extensive motion practice relating to Johnson’s discovery

responses, there was only one failure to comply with a court order. And 

Johnson did not completely flout that order; he submitted some discovery 

responses and filed supplemental responses a month after the district court’s 

deadline. That conduct, though certainly far from satisfactory, does not 

amount to the “‘stubborn resistance to authority’ which justifies a dismissal 

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with prejudice.” Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 327 (5th Cir. 

2008) (quoting McNeal v. Papasan, 842 F.2d 787, 792 (5th Cir. 1988)). For 

comparison’s sake, our recent decisions affirming dismissal-with-prejudice 

sanctions involved a party’s persistent refusals to arbitrate, Griggs, 905 F.3d

at 845; a plaintiff’s intentional flight from law enforcement for five years, 

Gates, 885 F.3d at 883; and a plaintiff’s “flout[ing]” multiple “court orders 

simply because he [was] not independently certain of their validity,” 

Nottingham v. Warden, Bill Clements Unit, 837 F.3d 438, 442 (5th Cir. 2016). 

Unlike those cases, the conduct here—though troubling—did not “threaten[] 

the integrity of the judicial process.” Rogers v. Kroger Co., 669 F.2d 317, 320 

(5th Cir. 1982).

In addition to the absence of contumacious conduct, the magistrate judge 

did not first try a lesser sanction or warn Johnson that dismissal would follow 

any further violations. The magistrate judge stated that “[l]esser sanctions 

ha[d] been employed . . . to no avail,” but compelling discovery, which the court 

did once, is not a Rule 41(b) sanction. Nottingham, 837 F.3d at 442 (explaining 

lesser sanctions under Rule 41(b) include fines, costs, or damages assessed 

against the plaintiff, explicit warnings, conditional dismissal, and dismissal 

without prejudice).

For these reasons, dismissal was also improper under Rule 41(b).

* * *

The judgment is VACATED, and the case is REMANDED for further 

proceedings. We trust that prompt attention will be paid to any additional 

discovery requests or other deadlines so that this case may proceed 

expeditiously to resolution.

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