FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

March 15, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-15023

Non-Argument Calendar

________________________

D. C. Docket No. 03-21675-CV-MGC

ROBERT D. PIERCE, JR., 

Plaintiff-Appellant, 

versus 

CITY OF MIAMI, 

RON HENRY, Corporal, 

T. HARRISON, Officer, 

Defendants-Appellees, 

JOHN TIMONEY, Chief, 

et al., 

Defendants. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(March 15, 2006)
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Before CARNES, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

Robert Pierce filed a pro se civil rights complaint, 42 U.S.C. § 1983, against

the City of Miami, Ron Henry, T. Harrison, and two unnamed defendants. The

district court issued an Order of Instructions to Pro Se Litigants, advising Pierce to

serve the defendants’s counsel with copies of all pleadings, to submit copies of

service of process with all filings, and to review the rules of civil procedure, and

warning that the failure to actively pursue the case could result in dismissal. 

Thereafter, the court issued an order to show cause based on Pierce’s failure to

submit a certificate of interested parties, a corporate disclosure statement, and a

form concerning consent to a magistrate judge’s jurisdiction. Pierce responded to

the order with the required documentation. 

The defendants answered the complaint and filed individual motions for 

summary judgment. Pierce then moved to amend his complaint, adding additional

claims and defendants. The court granted the motion to amend, over the

defendants’ objections. 

The defendants jointly moved to dismiss the complaint because summary

judgment was pending. The court denied the motion to dismiss, concluding that

the amended complaint rendered the summary judgment motions moot. The
 Local Rule 7.1C provides, “[e]ach party opposing a motion shall serve an opposing 1

memorandum of law no later than ten days after service of the motion . . . failure to do so may be

sufficient cause for granting the motion by default.” 

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defendants then filed a joint summary judgment motion, adopting their previous

arguments. Pierce did not respond to the motion to dismiss or for summary

judgment. 

On August 5, 2005, the district court issued an order to show cause why the

complaint should not be dismissed because Pierce had not responded to the

motions. Pierce did not respond to the order to show cause, and the court

dismissed the complaint by default on August 16 pursuant to Local Rule 7.1C.1

The following day, Pierce submitted his response to the order to show cause,

explaining that he had been in treatment for post-traumatic stress disorder at the

Veterans Administration Hospital and was not released until mid-July. He stated

that the order was not mailed until August 12 and he did not receive it until August

16. He further admitted that he had not realized a response was required because

the summary judgment motion was the same as the original motions the defendants

had filed previously and to which he had responded. The district court denied the

response as untimely and moot, noting that it was the second time the court had

issued Pierce an order to show cause. 

On appeal, Pierce argues that the court abused its discretion by dismissing
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his complaint without considering his explanation, warning him of the possibility

of default or dismissal, or determining whether lesser sanctions would suffice. He

also reminds this court of his pro se status. 

Dismissal for want of prosecution under Fed.R.Civ.P. 41(b) is within the

trial court’s discretion and can be reversed only for an abuse of discretion. 

McKelvey v. AT&T Tech., Inc., 789 F.2d 1518, 1520 (11th Cir. 1986); see also

Gratton v. Great American Communications, 178 F.3d 1373, 1374 (11th Cir.

1999). Dismissal is a severe sanction that is appropriate “‘only in the face of a

clear record of delay or contumacious conduct by the plaintiff’ and ‘where less

drastic sanctions are unavailable.’” McKelvey, 789 F.2d at 1520 (citation

omitted). “A finding of such extreme circumstances necessary to support the

sanction of dismissal must, at a minimum, be based on evidence of willful delay;

simple negligence does not warrant dismissal.” Id. 

Here, although the court had warned Pierce that dismissal was possible for

the failure to prosecute, this extreme sanction was not warranted in this case. 

Pierce responded to the order to show cause one day after the time period expired,

and explained that he had not received the order until then. In addition, the court

made no finding that lesser sanctions would not suffice. Notably, although the

court warned Pierce that failure to prosecute could result in dismissal, there is no
 In Mitchell, this court vacated and remanded a court’s dismissal based on the failure to 2

comply with a local rule because there was no evidence that the plaintiff knew about the rule. Here,

in contrast, Pierce had been warned about failure to prosecute and he knew that a response to a

motion to dismiss or for summary judgment was proper because he filed such responses to the

earlier motions. Pierce was not, however, instructed regarding the local rule under which the court

dismissed his complaint.

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evidence that Pierce was made aware of Local Rule 7.1C, the basis for the court’s

order. Cf. Mitchell v. Inman, 682 F.2d 886 (11th Cir. 1982) ; see also Moore v. 2

Florida, 703 F.2d 516 (11th Cir. 1983). Pierce pursued his claims and responded

quickly to the previous order to show cause. Thus, there was no evidence of

willful contempt or contumacious conduct necessary to dismiss the complaint.

Moreover, although pro se litigants are still bound by rules of procedure, this

court has explained that they should not be held to the same level of knowledge as

an attorney, and, therefore, additional notice may be appropriate. Sampson v.

Fulton County Jail, 157 Fed. Appx. 242 (11th Cir. 2005) (unpublished) (citing

Gunn v. Newsome, 881 F.2d 949 (11th Cir. 1989), and Mitchell, 682 F.2d at 887). 

The appellees assert that dismissal was proper because Pierce exhibited more

than negligence in the prosecution of his claims. The record reflects, however, that

Pierce promptly complied with the court’s orders to show cause, and he has

explained why he failed to respond to the earlier order. This situation appears

more like negligence than wilful contempt. Therefore, we conclude that the district

court abused its discretion because it did not determine whether lesser sanctions
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would suffice, and there was no evidence of wilful contempt or delay. 

Accordingly, we VACATE and REMAND.