United States Court of Appeals 

for the Fifth Circuit 

No. 19-50562 

Russell Hope, Jr., 

Plaintiff—Appellant, 

versus

Anthony J. Patrick; William A. Burroughs; Daniel 

Parker; Ibu Zaffa; Francisco Gonzalez; Marcus 

Dorman, 

Defendants—Appellees. 

Appeal from the United States District Court 

for the Western District of Texas 

No. 6:17-CV-317 

Before Richman, Chief Judge, and Dennis and Haynes, Circuit 

Judges.

Per Curiam:*

Russell Hope, Jr. appeals the district court’s Rule 41(b) dismissal of 

his § 1983 action. Because the district court abused its discretion by 

concluding that lesser sanctions would not prompt diligent prosecution, we 

*

 This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals 

Fifth Circuit 

FILED 

May 31, 2023 

Lyle W. Cayce 

Clerk 

Case: 19-50562 Document: 00516770258 Page: 1 Date Filed: 05/31/2023
No. 19-50562 

2 

vacate the order of dismissal and remand for the imposition of a lesser 

sanction and further proceedings consistent with this opinion. 

I 

Hope, an inmate in the custody of the Texas Department of Criminal 

Justice (TDCJ), filed a pro se § 1983 action against several TDCJ officials 

after he was allegedly assaulted during transport between correctional 

facilities. The district court appointed counsel to represent Hope, and Hope 

diligently pursued his claims, submitting numerous discovery requests and 

deposing nine witnesses. The court ultimately set trial for 9:00 a.m. on 

February 4, 2019. Shortly before trial, TDCJ transferred Hope to the Hughes 

Unit, a correctional facility thirty-eight miles from Waco, where the trial was 

to take place. Coincidentally, the Hughes Unit is the facility where the 

alleged assault underlying Hope’s suit occurred. Hope asserts that, in the 

days before trial, Hughes Unit officers taunted him and withheld his meals in 

retaliation for the lawsuit. 

On the morning of trial, TDCJ officers prepared to strip search Hope 

before transporting him to court. When the guards placed hand restraints on 

Hope, he pulled the restraints and key into his cell, covered his cell door with 

a mattress, damaged the key by scraping it on the floor, and flushed the key 

down the toilet. After removing the mattress and relinquishing the hand 

restraints, Hope repeatedly told the guards that he had flushed the key and 

did not have it in his possession. Hope repeatedly explained that he took the 

key because an officer had withheld his meals the previous day. After 

approximately thirty minutes, guards removed Hope from his cell without 

the need for force. As officers escorted Hope to the strip search cage, Hope 

lay on the ground for about thirty seconds before complying with orders to 

stand up and submitting to a strip search. 

Case: 19-50562 Document: 00516770258 Page: 2 Date Filed: 05/31/2023
No. 19-50562 

3 

After the search, Hope received bench warrant clothes but refused to 

wear them, tearing the provided shirt. Officers brought a different shirt, 

explaining that the garment was merely for transport and that Hope’s 

attorneys would provide him with court-appropriate clothing. Hope agreed 

to wear the shirt. Officers ordered Hope to approach the body office security 

scanning (BOSS) device, which detects metal in human bodies. Hope 

initially refused to undergo a BOSS scan but relented after approximately 

fifteen minutes. The scan revealed no metal, and officers escorted Hope to 

the transport van without further incident. TDCJ personnel did not file a 

report regarding problems with Hope’s transport. 

Hope arrived at the district court before his trial began, during jury 

selection for another matter. However, the United States Marshals did not 

permit Hope to enter the courthouse after TDCJ officers reported that Hope 

had likely swallowed the key to his hand restraints and needed to be taken to 

the hospital for an x-ray. Accordingly, the district court postponed Hope’s 

trial. The TDCJ officials then filed a Rule 41 motion to dismiss, which the 

court granted, concluding that Hope engaged in contumacious conduct 

warranting dismissal of his claims with prejudice. The district court denied 

Hope’s motion to alter or amend the judgment, and Hope timely appealed. 

II 

On appeal, Hope contends that the district court erred in dismissing 

his § 1983 suit for failure to prosecute pursuant to Federal Rule of Civil 

Procedure 41(b).1

 This court typically reviews Rule 41(b) dismissals for 

abuse of discretion.2

 Dismissal with prejudice is, however, “an extreme 

sanction,” reserved for cases in which “the plaintiff’s conduct has 

1 See Fed. R. Civ. P. 41(b). 

2 See Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992). 

Case: 19-50562 Document: 00516770258 Page: 3 Date Filed: 05/31/2023
No. 19-50562 

4 

threatened the integrity of the judicial process” such that “the court [has] no 

choice but to deny that plaintiff its benefits.”3 We affirm dismissals with 

prejudice only when (1) “the district court has expressly determined that 

lesser sanctions would not prompt diligent prosecution, or the record shows 

that the district court employed lesser sanctions that proved to be futile” and 

(2) “there is a clear record of delay or contumacious conduct by the 

plaintiff.”4

 In most cases affirming dismissals with prejudice, moreover, we 

have discerned “at least one of three aggravating factors: (1) delay caused by 

[the] plaintiff himself and not his attorney; (2) actual prejudice to the 

defendant; or (3) delay caused by intentional conduct.”5

A 

Before sanctioning a party via dismissal with prejudice, the district 

court must “expressly determine[] that lesser sanctions would not prompt 

diligent prosecution, or the record [must show] that the district court 

employed lesser sanctions that proved to be futile.”6

 In other words, the 

district court should “find . . . that dismissal with prejudice is the least 

sanction which would serve the ends of justice.”7

 Hope contends that the 

district court abused its discretion by failing to consider adequately lesser 

sanctions, such as issuing a warning or permitting Hope to testify by video, 

3 McNeal v. Papasan, 842 F.2d 787, 790 (5th Cir. 1988) (internal quotation marks 

omitted) (quoting Rogers v. Kroger Co., 669 F.2d 317, 321 (5th Cir. 1982)). 

4 Berry, 975 F.2d at 1191. 

5 Id. (internal quotation marks omitted) (quoting Price v. McGlathery, 792 F.2d 472, 

474 (5th Cir. 1986) (per curiam)). 

6 Id.

7 McNeal, 842 F.2d at 794. 

Case: 19-50562 Document: 00516770258 Page: 4 Date Filed: 05/31/2023
No. 19-50562 

5 

because this was Hope’s first instance of delay, and Hope had represented 

that he would not contribute to further delays. 

In its order of dismissal, the district court concluded that lesser 

sanctions would not prompt diligent prosecution. The court noted that 

assessing fines and costs would not be appropriate because Hope’s attorneys 

represent him on a pro bono basis. The court also “considered issuing a 

warning” but ultimately found this potential sanction ineffectual. The court 

reasoned that Hope’s conduct, was “not the type of behavior that one would 

expect from a plaintiff who truly wished to diligently prosecute his case,” 

because “[t]he [c]ourt gave Hope what he wanted—a day in court to have his 

claims heard—yet he chose to willfully disobey orders and resist authority 

despite knowing that his actions might have negative consequences on his 

case.” 

The district court’s determination that lesser sanctions would not 

suffice is not plausible in light of the entire record.8

 First, as Hope 

emphasizes, this was his first instance of noncompliance. It is undisputed 

that both before and after appointment of counsel, Hope vigorously pursued 

his claims by conducting substantial discovery, meeting deadlines, and 

attending conferences. Thus, we agree with Hope that “the district court 

erred by declining to recognize the significant commitment Hope had 

displayed in prosecuting his case prior to the morning of trial.” Second, 

video taken on the morning of trial, which the district court reviewed prior to 

dismissal, depicts Hope’s clear intention to appear before the court and 

8 See United States v. Wilcox, 631 F.3d 740, 747 (5th Cir. 2011) (“A district court 

abuses its discretion when it makes an error of law or ‘if it bases its decision on a clearly 

erroneous assessment of the evidence.’” (quoting United States v. Lipscomb, 299 F.3d 303, 

338-39 (5th Cir. 2002))); Anderson v. Bessemer City, N.C., 470 U.S. 564, 573-74 (1985) 

(explaining “[i]f the district court’s account of the evidence is plausible in light of the 

record viewed in its entirety, the court of appeals may not reverse it”). 

Case: 19-50562 Document: 00516770258 Page: 5 Date Filed: 05/31/2023
No. 19-50562 

6 

further belies the conclusion that Hope did not wish to pursue his case. 

Finally, the district court does not appear to have considered Hope’s 

explanation for his behavior on the morning of trial. In an affidavit, Hope 

explained that his defiant conduct was a response to Hughes Unit guards 

withholding his food in retaliation for the lawsuit. These allegations do not 

excuse Hope’s behavior. But they nonetheless indicate that, by misbehaving 

during transport, Hope meant to antagonize TDCJ officers, not avoid his 

trial. Given the unique circumstances surrounding Hope’s nonappearance 

at trial, as well as Hope’s repeated assurances that he will not contribute to 

further delay, the record does not support the district court’s determination 

that lesser sanctions would not spur diligent prosecution. Thus, although the 

district court expressly found lesser sanctions inadequate, the court based 

this conclusion o a clearly erroneous view of the evidence and thereby abused 

its discretion.9

B 

We turn next to the other prong of our Rule 41(b) analysis, which 

requires (1) “a clear record of delay” or (2) “contumacious conduct by a 

plaintiff” to support a dismissal with prejudice.10

1 

The district court perceived no clear record of delay warranting 

dismissal. Nor do we. Our caselaw recognizes that the requisite 

“delay . . . must be longer than just a few months; instead, the delay must be 

characterized by significant periods of total inactivity.”11 Delay justifying 

9 See Wilcox, 631 F.3d at 747. 

10 Berry, 975 F.2d at 1191. 

11 Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 326-27 (5th Cir. 2008) (internal 

quotation marks omitted) (quoting McNeal v. Papasan, 842 F.2d 787, 791 (5th Cir. 1988)). 

Case: 19-50562 Document: 00516770258 Page: 6 Date Filed: 05/31/2023
No. 19-50562 

7 

dismissal with prejudice is thus usually “egregious and sometimes 

outrageous.”12

Here, no such delay occurred. Throughout the litigation, Hope met 

all deadlines and appeared at status and pretrial conferences. Regarding the 

day of trial, Hope admits that his behavior did slow the transport process that 

morning. But, as the TDCJ officials concede, Hope’s outbursts added a mere 

forty-five minutes or so to his transport. That minimal lag is nowhere near 

the lengthy delays we have required to uphold other dismissals and is not a 

“significant period[] of total inactivity.”13 Moreover, the postponement of 

Hope’s trial does not give rise to a clear record of delay justifying dismissal. 

The parties dispute whether Hope is to blame for the postponement. But any 

resulting delay, irrespective of its cause, was too brief to merit dismissal with 

prejudice.14 Because trial could have proceeded once security concerns over 

the missing handcuff key were allayed, “we cannot assume from the record 

before us that [Hope] would have remained unprepared for significant 

periods.”15

2 

Instead of delay, the district court based its dismissal on contumacious 

conduct. We define contumacious conduct as “stubborn resistance to 

authority.”16 When assessing a litigant’s contumaciousness, this court has 

12 Id. at 327 (internal quotation marks omitted) (quoting Rogers v. Kroger Co., 669 

F.2d 317, 321 (5th Cir. 1982)). 

13 Millan, 546 F.3d at 327; see also McNeal, 842 F.2d at 791 (“[D]elay which 

warrants dismissal with prejudice must be longer than just a few months . . . .”). 

14 See McNeal v. Papasan, 842 F.2d 787 at 791 (5th Cir. 1988). 

15 Id. (internal quotation marks omitted). 

16 Id. at 792 (quoting John v. La., 828 F.2d 1129, 1132 (5th Cir. 1987)); ROA.1439. 

Case: 19-50562 Document: 00516770258 Page: 7 Date Filed: 05/31/2023
No. 19-50562 

8 

also considered “whether the facts expose an obstinate disrespect for the 

judicial process.”17

Hope’s case is dissimilar to our contumacious conduct precedent in 

which litigants repeatedly refused to comply with court orders or appear at 

scheduled proceedings.18 It is undisputed that throughout the litigation, 

Hope vigorously pursued his claims, conducting substantial discovery, 

meeting all deadlines, and appearing at status and pretrial conferences. 

Without a pattern of prior misconduct, Hope’s insubordination on the 

morning of trial is the only transgression potentially meriting dismissal. 

The district court found that Hope engaged in contumacious conduct 

that morning when he “willfully refused to have hand restraints placed on his 

person,” “pull[ed] said restraints into his cell,” “destroy[ed] the key by 

flushing it down the toilet,” and was generally “uncooperative and disruptive 

throughout the entire transport process by repeatedly refusing to comply 

with orders.” That behavior clearly demonstrates “stubborn resistance to 

authority.”19 The question, then, is whether “the facts expose an obstinate 

disrespect for the judicial process.”20 We hesitate to conclude that Hope’s 

17 Id.; see also Rogers v. Kroger Co., 669 F.2d 317, 321 (5th Cir. 1982) (noting that our 

decisions affirming Rule 41(b) dismissals with prejudice involve “cases where the 

plaintiff’s conduct has threatened the integrity of the judicial process . . . leaving the court 

no choice but to deny that plaintiff its benefits”). 

18 See, e.g., Nottingham v. Warden, Bill Clements Unit, 837 F.3d 438, 443 (5th Cir. 

2016) (contumacious conduct occurred when the plaintiff engaged in a pattern of “applying 

for IFP status and then paying the filing fee rather than complying with an order to provide 

verifiable information in support of the IFP application”); Hornbuckle v. Arco Oil & Gas 

Co., 732 F.2d 1233, 1236-37 (5th Cir. 1984) (contumacious conduct occurred when an 

attorney moved to continue trial on multiple occasions, then scheduled two overlapping 

trials). 

19 McNeal, 842 F.2d at 792 (quoting John, 828 F.2d at 1132). 

20 Id. 

Case: 19-50562 Document: 00516770258 Page: 8 Date Filed: 05/31/2023
No. 19-50562 

9 

intransigence, which occurred entirely within the prison and targeted solely 

TDCJ officers, meets this standard. Unlike other Rule 41(b) plaintiffs, Hope 

expressed no such resistance toward the court.21 The record supports a 

conclusion that Hope fully intended to appear at trial, and did in fact arrive 

at the courthouse, but was prevented from entering after TDCJ officers 

incorrectly informed court personnel that Hope had swallowed the handcuff 

key. 

Ultimately, however, we need not decide whether Hope obstinately 

disrespected the judicial process. Even if Hope’s conduct was 

contumacious, the district court nonetheless failed to consider lesser 

sanctions adequately before dismissing Hope’s claims with prejudice. 

III 

We express no opinion as to whether Hope’s case presents 

“aggravating factors” such as intentional delay caused by a party (not his 

attorney) or actual prejudice to the opposing party.22 The district court’s 

erroneous conclusion regarding the futility of lesser sanctions requires us to 

vacate the order of dismissal regardless of any exacerbating circumstances.23

21 See, e.g., Sampson v. Giles, 410 F. App’x 823, 824-25 (5th Cir. 2011) (per curiam) 

(unpublished) (concluding that an incarcerated § 1983 plaintiff engaged in contumacious 

conduct when he “state[d] multiple times that he was not going to court” and “could not 

be transported to court because he refused to accept prison issued toiletries and to submit 

to a strip search”). 

22 Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992). 

23 See id. (explaining that “[w]e will affirm dismissals with prejudice for failure to 

prosecute only when . . . the district court has expressly determined that lesser sanctions 

would not prompt diligent prosecution”). 

Case: 19-50562 Document: 00516770258 Page: 9 Date Filed: 05/31/2023
No. 19-50562 

10 

IV 

Nor do we address Hope’s contentions regarding the effect of 

dismissal on his due process rights.24 Our conclusion that dismissal was an 

inappropriate sanction here renders moot any due process implications 

resulting from that dismissal. 

* * * 

For the foregoing reasons, we VACATE the order of dismissal and 

REMAND for the imposition of a lesser sanction and further proceedings 

consistent with this opinion. 

24 See Link v. Wabash R. Co., 370 U.S. 626, 632, 633 (1962) (explaining that, in the 

context of Rule 41(b) dismissals, “[t]he adequacy of notice and hearing . . . turns, to a 

considerable extent, on the knowledge which the circumstances show such party may be 

taken to have of the consequences of his own conduct,” but also noting that “the 

availability of a corrective remedy such as is provided by Federal Rule of Civil Procedure 

60(b)—which authorizes the reopening of cases in which final orders have been inadvisedly 

entered—renders the lack of prior notice of less consequence.”). 

Case: 19-50562 Document: 00516770258 Page: 10 Date Filed: 05/31/2023