# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 15-2014

___________________________ Carlden Trotter
lllllllllllllllllllll Plaintiff - Appellant

v. Walter Lawson, Correctional Officer I, ERDCC; Stephen McGee, Correctional Officer I, ERDCC
lllllllllllllllllllll Defendants - Appellees David L. Shipley, Correctional Officer I, ERDCC
lllllllllllllllllllll Defendant Bobby Currington, Correctional Officer I, ERDCC; Robert Thebeau, Correctional Officer I, ERDCC; Steve Larkins; Scott McFarland, Correctional Officer I, ERDCC
lllllllllllllllllllll Defendants - Appellees

____________ Appeal from United States District Court for the Eastern District of Missouri - St. Louis

____________ Submitted: January 6, 2016 Filed: January 11, 2016 [Unpublished]

____________ Before GRUENDER, BENTON, and KELLY, Circuit Judges.

____________PER CURIAM.
Missouri inmate Carlden Trotter appeals after the district court denied his motions for appointment of counsel and dismissed his 42 U.S.C. § 1983 action for failure to prosecute. Having jurisdiction under 28 U.S.C. § 1291, th is court reverses.
Trotter brought this pro se action alleging that after hehad an altercation with a non-defendant corrections officer at the Eastern Reception, Diagnostic and Correctional Center, defendant corrections officers retaliated by beating him while he was handcuffed and not resisting. Throughout the pretri al proceedings, Trotter filed several motions for appointment of counsel , indicating that he was unable to afford counsel, institutional constraints were hampering his ability to investigate his claims, and he would need a lawyer to present his case to a jury. The court denied each motion for counsel upon concluding that the case was not so complex as to warrant appointment of counsel, and that Trotter’s pleadings indicated he was capable of presenting the facts and legal issues without the assistance of counsel.
When the parties appeared for trial, the court began by hearing arguments on defendants’ motions in limine and objections to certain exhibits and witnesses offered by Trotter. After several adverse rulings, Trotter again requested counsel and stated he would not participate without a lawyeras he did not know how to put forth evidence to prove his case. Defendants move d orally to dismiss the case for want of prosecution. See Fed. R. Civ. P. 41(b). The proceeding ended with the following exchange after one of Trotter’s witne sses was called for an offer of proof:
THE COURT: Do you want to continue with this case today and proceed to trial? MR. TROTTER: I want to continue and get me a lawyer. THE COURT: The Court cannot give you a lawyer. MR. TROTTER: Well, we can get it continued so I can get my own

-2-lawyer. I don’t know what I’m doing, and I’m not going to sit up here and play this game while you let them take all my evidence. What am I--What am I going to have to prove? THE COURT: Mr. Trotter, do you want to ask any questions of this witness? MR. TROTTER: I said I’m through. THE COURT: So you’re not going to proceed-- MR. TROTTER: No. THE COURT: --with this case today? MR. TROTTER: No. THE COURT: Okay. Thank you sir. You may step down. Do you have a response to Defendant’s motion? MR. TROTTER: I’m not going to play this game, ma’am. THE COURT: Do you have a response to the motion? Mr. Trotter? Based on Mr. Trotter’s unwillingness to proceed today, I’m going to dismiss the case; grant the motion of the Defendants.
On appeal, Trotter argues that the district court erred both in denying appointed counsel and in dismissing the case for failu re to prosecute. Appellees argue that dismissal was proper based on Trotte r’s unwillingness to proceed, and citing DuBose v. State of Minn. , 893 F.2d 169 (8th Cir. 1990), they a ssert that Trotter’s request for counsel is not properly before this court, see id. at 171 (holding that interlocutory order granting partial summary judgment di d not merge into Rule 41(b) order of dismissal and therefore interlocutory orde r was not reviewable on appeal). The interlocutory order here, however, does nottrigger the concern for abuse of the judicial process that animates DuBose , and therefore both the denial of counsel and the dismissal of the case are properly before this court.
Turning to the merits, this court concl udes that the district court abused its discretion in dismissing th e case for failure to prosecute, which amounted to a dismissal under Federal Rule of Civil Proce dure 41(b) and operated as an adjudication on the merits. See Fed. R. Civ. P. 41(b) (i nvoluntary dismissal operates as
-3-adjudication on merits unless court states otherwise); DiMercurio v. Malcom , 716 F.3d 1138, 1139 (8th Cir. 2013) (standard of review). Although a court may dismiss a case with prejudice if the pl aintiff fails to prosecute, see Fed. R. Civ. P. 41(b), such a dismissal is a “drastic a nd extremely harsh sanction” th at is only proper when “there has been a clear record of delay or contumacious conduct by the pl aintiff” and “lesser sanctions prove futile,” DiMercurio , 716 F.3d at 1140 (internal quotation marks and citations omitted). “A district court should weigh its need to advance its burdened docket against the consequence of irrevo cably extinguishing the litigant’s claim and consider whether a less severe sanction could remedy the effect of the litigant’s transgressions on the court and the resu lting prejudice to the opposing party.” Hunt v. City of Minneapolis, Minn. , 203 F.3d 524, 527 (8th Cir. 2000) (citation omitted). Here, reversal is warranted because the reco rd does not show that the district court gave adequate consideration to a less se vere sanction--such as dismissal without prejudice to allow Trotter to pursue his s uggestion of procuring his own counsel--or that the court expressly warned Trotte r that his case would be dismissed with prejudice if he did not proceed immediately.
Upon careful consideration, this court c oncludes also that the district court abused its discretion in denying appointed counsel. See Phillips v. Jasper Cnty. Jail , 437 F.3d 791, 794 (8th Cir. 2006) (standard of review and relevant factors). When ruling on a motion for appointed counsel, a c ourt must exercise “a reasoned and wellinformed discretion” and should “serious ly consider” appointing counsel when an indigent plaintiff states a colo rable claim and the nature of the case is such that he and the court would benefit from assistance of counsel. See Brown v. Frey , 806 F.2d 801, 804 (8th Cir. 1986). Although counsel may have been unwarranted early in the proceedings, the record demons trates that as the case progressed, Trotter had difficulty obtaining and presenting admissible eviden ce, and importantly, he lacked the skills necessary to present his case to a jury. See Rayes v. Johnson , 969 F.2d 700, 704 (8th Cir. 1992); Abdullah v. Gunter , 949 F.2d 1032, 1036 (8th Cir. 1991); Johnson v.

-4-Williams , 788 F.2d 1319, 1323 (8th Cir. 1986); Wiggins v. Sargent , 753 F.2d 663, 668 (8th Cir. 1985).
This court reverses the denial of appoint ed counsel and the dismissal of the case with prejudice. The case is reinstated with directions to appoint counsel.

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