# United States Court of Appeals **for the Fifth Circuit**

No. 19-50562

Russell Hope, Jr.,

Plaintiff—Appellant ,

versus
Anthony J. Patrick; Willia m A. Burroughs; Daniel Parker; Ibu Zaffa; Franci sco 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 distri ct court abused its discretion by concluding that lesser sanctions woul d 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: 05/31/2023No. 19-50562

2 vacate the order of dismissal and rema nd 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 duri ng transport between correctional facilities. The district court appointe d counsel to repres ent Hope, and Hope diligently pursued his claims, submitti ng numerous discovery requests and deposing nine witnesses. The court ul timately 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 in to 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 gu ards 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 abou t thirty seconds before co mplying with orders to stand up and submitting to a strip search. Case: 19-50562 Document: 00516770258 Page: 2 Date Filed: 05/31/2023No. 19-50562

3 After the search, Hope received be nch warrant clothes but refused to wear them, tearing the provided shirt. Officers brought a different shirt, explaining that the garment was mer ely for transport and that Hope’s attorneys would provide him with court- appropriate clothing. Hope agreed to wear the shirt. Officers ordered Ho pe to approach the body office security scanning (BOSS) device, which detects metal in human bodies. Hope initially refused to undergo a BOSS sc an 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 af ter 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. Accordingl y, 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 th e judgment, and Hope timely appealed.

II On appeal, Hope contends that the district court erred in dismissing his § 1983 suit for failure to prosec ute 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: 05/31/2023No. 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 dilig ent 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 dela y or contumacious conduct by the plaintiff.” 4 In most cases affirming dismis sals with prejudice, moreover, we have discerned “at least one of three aggr avating factors: (1 ) delay caused by [the] plaintiff himself and not his a ttorney; (2) actual prejudice to the defendant; or (3) delay caus ed by intentional conduct.” 5

A Before sanctioning a party via dismi ssal with prejudice, the district court must “expressly determine[] that lesser sanctions would not prompt diligent prosecution, or the record [m ust 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 prej udice 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 Ho pe 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: 05/31/2023No. 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 potent ial sanction ineffe ctual. The court reasoned that Hope’s conduct, was “not the type of behavior that one would expect from a plaintiff who truly wish ed 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 substant ial discovery, meeting deadlines, and attending conferences. Thus, we agree with Hope that “the district court erred by declining to recognize th e significant commitment Hope had displayed in prosecuting his case prio r to the morning of trial.” Second, video taken on the morning of trial, whic h the district court reviewed prior to dismissal, depicts Hope’s clear inte ntion 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: 05/31/2023No. 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 morn ing of trial. In an affidavit, Hope explained that his defiant conduct was a response to Hughes Unit guards withholding his food in retaliation for th e lawsuit. These allegations do not excuse Hope’s behavior. But they none theless indicate that, by misbehaving during transport, Hope meant to antagonize TDCJ officers, not avoid his trial. Given the unique circumstan ces 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 d iligent prosecution. Thus, although the district court expressly found lesser sanctions inadequate , the court based this conclusion o a clearly erroneous vi ew 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 dela y” 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 case law 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: 05/31/2023No. 19-50562

7 dismissal with prejudice is thus usually “egregious and sometimes outrageous.” 12 Here, no such delay occurred. Th roughout the litigation, Hope met all deadlines and appeared at status an d pretrial conferences. Regarding the day of trial, Hope admits that his behavi or 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 clea r 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 mer it dismissal with prejudice. 14 Because trial could have proceed ed once security concerns over the missing handcuff key were allayed, “we cannot assume from the record before us that [Hope] would have re mained 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: 05/31/2023No. 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 co mply with court orders or appear at scheduled proceedings. 18 It is undisputed that throughout the litigation, Hope vigorously pursued his claims, conducting substa ntial discovery, meeting all deadlines, and ap pearing at status and pretrial conferences. Without a pattern of prior miscondu ct, Hope’s insubordination on the morning of trial is the only transgre ssion 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 in to his cell,” “destroy[ed] the key by flushing it down the toilet,” and was generally “uncooperative and disruptive throughout the entire transport proces s 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 Ci r. 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 rat her than complying with an order to provide verifiable information in suppo rt 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: 05/31/2023No. 19-50562

9 intransigence, which occurred entirely within the prison and targeted solely TDCJ officers, meets this standard. Unlik e other Rule 41(b) plaintiffs, Hope expressed no such resistance toward the court. 21 The record supports a conclusion that Hope fully intended to ap pear at trial, and did in fact arrive at the courthouse, but was prevented from entering after TDCJ officers incorrectly informed court personnel th at 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 no netheless 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 intentio nal delay caused by a party (not his attorney) or actual prejudice to the opposing party. 22 The district court’s erroneous conclusion regarding the fut ility of lesser sanctions requires us to vacate the order of dismissal regardle ss 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 incarcerat ed § 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 dism issals 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: 05/31/2023No. 19-50562

10 IV Nor do we address Hope’s conten tions regarding the effect of dismissal on his due process rights. 24 Our conclusion th at 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 sa nction 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 adequa cy 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