IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-20135

Summary Calendar

ROBERT ALEXANDER TUFT,

Plaintiff-Appellant

v.

THE STATE OF TEXAS; VERNON PITTMAN, Warden-Jester 3; JEROLD BRAGGS,

Assistant Warden, Jester 3; GUY SMITH, Assistant Regional Director-Texas

Department of Criminal Justice; DOUG WALDRON, Assistant

Regional Director-Texas Department of Criminal Justice; J. P. GUYTON, Assistant

RegionalDirector-Texas Department of Criminal Justice; SUSAN DOSTAL, University

of Texas Medical Branch Medical Program Administrator; NATHANIEL

QUARTERMAN, Director Texas Department of Criminal Justice-Correctional

Institutions Division; MELANIE POTTER, MLP P.A., University of Texas Medical

Branch; JALYN WILSON,P.T. University of Texas Medical Branch; PATSY GUERRA,

(Velasquez), Texas Department of Criminal Justice Access to Courts; VICKY

BARROWS, Texas Department of Criminal Justice Access to Courts; ARLINE

WALKER, Texas Department of Criminal Justice Access to Courts; RACHEL

CROSBY, C.O.V. Texas Department of Criminal Justice; CHERYL LAWSON, Texas

Department of Criminal Justice Grievance Analyst; MARK A. ANDREWS, Texas

Department of Criminal Justice Chaplain; JOHN AND JANE DOE(S), Texas

Department of Criminal Justice/University of Texas Medical Branch, Texas

Department of Criminal Justice-Correctional Institutions Division Staff,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:09-CV-846

United States Court of Appeals

Fifth Circuit

F I L E D

October 4, 2010

Lyle W. Cayce

Clerk

Case: 10-20135 Document: 00511251911 Page: 1 Date Filed: 10/04/2010
No. 10-20135

Before HIGGINBOTHAM, BENAVIDES, and ELROD, Circuit Judges.

PER CURIAM:

*

Robert Tuft, Texas prisoner # 1062966, appeals the dismissal of his 42

U.S.C. § 1983 civil rights action for failure to prosecute under Federal Rule of

Civil Procedure 41(b). Tuft’s amended complaint against over a dozen

defendants raised nine claims relating to the conditions of his confinement, the

failure to evacuate for a hurricane, the denial of access to the courts, the

infringement of his religious freedom, and retaliation by prison officials. The

district court ordered Tuft to file a second amended complaint that contained

only claims related to a single set of facts in accordance with Federal Rules of

Civil Procedure 18 and 20. When he failed to do so, district court dismissed

Tuft’s lawsuit without prejudice under Rule 41(b).

We review such a dismissal “for abuse of discretion.” Larson v. Scott, 157

F.3d 1030, 1032 (5th Cir. 1998). However, because at least some of Tuft’s claims

would not be time barred, the scope of the discretion is narrowed. See Berry v.

CIGNA/RSI-CIGNA, 975 F.2d 1188, 1190-91 (5th Cir. 1992).

Under Rule 20(a)(2), parties may be joined as defendants if the plaintiff

asserts a claim against them “jointly, severally, or in the alternative with respect

to or arising out of the same transaction, occurrence, or series of transactions or

occurrences” and “any question of law or fact common to all defendants will arise

in the action.” A district court has discretion under Rule 20(a) to control the

scope of a lawsuit by limiting the number of defendants a plaintiff may hail into

court in a particular case. Arrington v. City of Fairfield, 414 F.2d 687, 693 (5th

Cir. 1969). In addition, “the creative joinder of actions” by prisoner plaintiffs to

avoid the strictures of the Prison Litigation Reform Act of 1995 (PLRA), Pub. L.

104-134, §§ 804-05, 110 Stat. 1321, 1321-73 to -75 (2006) (codified in relevant

 Pursuant to 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.

2

Case: 10-20135 Document: 00511251911 Page: 2 Date Filed: 10/04/2010
No. 10-20135

part at 28 U.S.C. §§ 1915, 1915A), should be discouraged. Patton v. Jefferson

Corr. Ctr., 136 F.3d 458, 464 (5th Cir. 1998).

In this case, the district court properly found that Tuft’s amended

complaint transgressed the limitations in Rule 20(a). However, where an action

is time barred following a dismissal without prejudice, the standard of review is

the same as if the action had been dismissed with prejudice. Berry, 975 F.2d at

1191. In this case, there is not a “clear record of delay or contumacious conduct,”

and the district court has not “expressly determined that lesser sanctions would

not prompt diligent prosecution.” Id. In addition, the record does not show “that

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

In fact, under Federal Rule of Civil Procedure 21, “[m]isjoinder of parties

is not a ground for dismissing an action.” Instead, a district court, “on motion

or on its own, . . . may at any time, on just terms, add or drop a party” and “may

also sever any claim against a party.” FED. R. CIV. P. 21. In other words, a court

faced with misjoinder “‘has two remedial options: (1) misjoined parties may be

dropped on such terms as are just; or (2) any claims against misjoined parties

may be severed and proceeded with separately.’” Acevedo v. Allsup’s

Convenience Stores, Inc., 600 F.3d 516, 520 (5th Cir. 2010) (quoting DirectTV,

Inc. v. Leto, 467 F.3d 842, 845 (3d Cir. 2006) (internal quotation marks and

citation omitted))). Because the record does not show that Tuft delayed the

proceedings in this case, acted contumaciously, or deliberately disobeyed court

orders, the district court abused its discretion “when it dismissed this entire

action, rather than simply dismissing” misjoined claims, dropping parties, or

both. Id. at 522; see also Berry, 975 F.2d at 1191-92.

Accordingly, we affirm the district court’s finding of misjoinder, reverse the

dismissal of Tuft’s entire lawsuit, and remand the case for further proceedings

consistent with this opinion. We disclaim any limitation on the district court’s

authority on remand to dismiss any of Tuft’s claims on any other basis, such as

3

Case: 10-20135 Document: 00511251911 Page: 3 Date Filed: 10/04/2010
No. 10-20135

any PLRA provisions that may be applicable. See, e.g.,28 U.S.C. § 1915;

§ 1915A; 42 U.S.C. § 1997e(e).

AFFIRMED in part; REVERSED in part; REMANDED.

4

Case: 10-20135 Document: 00511251911 Page: 4 Date Filed: 10/04/2010