### 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, individu ally & in his official capacity as Lieutenant for the Na t chitoches Pari sh Sheriff's Off ice; DEAN DOVE, individually & in his offi cial capacity as Warden for the Natchitoches Parish Detention Center , Defendant s
- Appellee s

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 o f 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 incom plete discovery

* Under 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED December 13, 2019 Lyle W. Cayce Clerk Case: 19-30206 Document: 00515234978 Page: 1 Date Filed: 12/13/2019No. 19

- 30206

2 re sponses, not all the requirements for the “ drastic sanction ” of dis missal with prejudice existed. See Moore v. CITGO Ref. & Chems. Co., L.P. , 735 F.3d 309, 315 (5th Cir. 2013)

. W e thus vacate the judgment and r emand for further proceedi ngs. I. In September 2017, Johnson sued Victor Jones, the Natchitoches Parish Sheriff; Patrick Da vis, one of Jones’s lieutenants; and Dean Dove, the Natchitoches Parish Detention Center Warden. According to the complaint, Davis physically attacked Johnso n

— 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 coun sel, 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, t he defendants
withdre w their request for sanctions. But the motion to compel was stil l pending. Finding that Johnson’s responses were “evasive and incomplete,” t he magistrate judge granted the motion to compel

. T he 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 au thorizations 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 suppl ement his discovery responses. Case: 19-30206 Document: 00515234978 Page: 2 Date Filed: 12/13/2019No. 19

- 30206

3 Five months later, the magistrate judge ruled that Johnson’s supplemental responses did not comply with the May 2018 discovery order and ordered additio nal briefing on the motion to dismiss. J ohnson provided the requested authorizations as attachments to his brief. Even though Johnson had finally provided the authorizations, t he magistrate judge recommended that the motion to dismiss be granted

. The

re commendation 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 vio lated the discovery order by submitting
in complete and un timely 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 ver ify his original or su pplemental 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 re commendation , the district court entered final judgment dismissing Johns on’s complaint with prejudice.
II. We review for abuse of discretion a district court’s dismissal with

pr ejudice 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)). D ismissal with prejudice “is a severe sanction that implicates due process. ” Moore , 735 F.3d at 315

. T his “draconian remedy”
thus should “not be used lightly, and should be used . . . only un der extreme circumstances.” Conn e r , 20 F.3d at 1380 (quoting EEOC v. Gen. Dynamics Corp. , 999 F.2d 113, 119 (5th Cir. 1993))

. Case: 19-30206 Document: 00515234978 Page: 3 Date Filed: 12/13/2019No. 19

- 30206

4 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 wheth er 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 whe re 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)). “ G enerally, where a plaintiff has failed only to comply with a few court orders or rules , we have held that the dist rict court abused its discretion in dismissing the suit with prejudice.” Berry v. CIGNA/RS I

- 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).
D espite the extensive motion practice relating to Johnson’s discovery

re s ponses , 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 response s a month after the district court’s deadline. That conduct, though certainly far from satisfactory, does not

a mount to the “‘ stubborn resistance to authority ’ which justifie s a dismissal Case: 19-30206 Document: 00515234978 Page: 4 Date Filed: 12/13/2019No. 19

- 30206

5 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 sanction s involved a party’s persistent refusals to arbitrate, Griggs , 905 F.3d
at 845 ; a plain t i ff’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 ,”
N ottingham 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 con duct, the magistrate judge did not first try a lesser sanction or warn Johnson that dismissal would f ollow any further violations. The magistrate judge stated that “[l]esser sanctions ha[d] been employed . . . to no avail,” but c ompel l ing 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 with out prejudice ). For these reasons , d ismissa l 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 dea dlines so that this case may procee d expeditiously to resolution. Case: 19-30206 Document: 00515234978 Page: 5 Date Filed: 12/13/2019