1 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-50065

Summary Calendar

 

PHILIP SANDOVAL, JR.,

Plaintiff-Appellant,

versus

MR. HOUSTON,

Defendant-Appellee.

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Appeal from the United States District Court

for the Western District of Texas

USDC No. EP-96-CV-36

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November 3, 1997

Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:1

Philip Sandoval, Jr., Texas inmate #600528, appeals the

dismissal of his civil rights complaint for failure to prosecute.

If necessary, this court must sua sponte examine the basis of its

jurisdiction. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987).

Sandoval’s request for a certificate of probable cause is construed

as a timely notice of appeal from the denial of his motion for

reconsideration. See Mosely, 813 F.2d at 660 (quoting Cobb v.

Lewis, 488 F.2d 41, 45 (5th Cir. 1974)); see also Smith v. Barry,
502 U.S. 244, 247-49 (1992) (document that is the functional

equivalent of a notice of appeal required under Fed. R. App. 3 is

sufficient). 

The court construed Sandoval’s December 6, 1996, motion as one

for reconsideration but did not designate under which rule of civil

procedure it fell. December 5, 1996, was the last day for Sandoval

to file a timely motion under Fed. R. Civ. P. 59(e). See Fed. R.

Civ. P. 6(a); 59(e). His motion for reconsideration was filed on

December 6, 1996, one day late. Sandoval certified, in compliance

with 28 U.S.C.§ 1746, that he mailed the pleading to counsel of

record on November 30, 1996. Under Houston v. Lack, 487 U.S. 266,

276 (1988), as well as Fed. R. App. P. 4(c), the motion is

construed as a Rule 59(e) motion. 

A district court may sua sponte dismiss an action for failure

to comply with any court order. Fed. R. Civ. P. 41(b); McCullough

v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988). A sua sponte

dismissal by the district court is reviewed for abuse of

discretion. Id. In the instant case, the district court did not

specify that the dismissal was without prejudice; therefore, the

dismissal "operates as an adjudication upon the merits," i.e.,

dismissal with prejudice. Rule 41(b). Such a dismissal is "an

extreme sanction" which operates as an adjudication on the merits

and "is to be used only when the plaintiff's conduct has threatened

the integrity of the judicial process [such that] the court [has]

no choice but to deny that plaintiff its benefits." McNeal v.
Papasan, 842 F.2d 787, 790 (5th Cir. 1988)(internal quotation and

citation omitted). Dismissal with prejudice is the ultimate

sanction for a litigant and should be imposed only after full

consideration of the likely effectiveness of less stringent

measures. Hornbuckle v. Arco Oil & Gas Co., 732 F.2d 1233, 1237

(5th Cir. 1984). 

A Rule 41(b) dismissal with prejudice should be affirmed if

the "case discloses both (1) a clear record of delay or

contumacious conduct by the plaintiff, and (2) that a lesser

sanction would not better serve the best interests of justice."

McNeal, 842 F.2d at 790. Contumacious conduct is "`stubborn

resistance to authority'" and justifies a dismissal with prejudice.

Id. at 792 (citation omitted).

The instant case does not disclose a clear record of delay or

contumacious conduct by Sandoval. He amended his complaint to

provide the defendant’s full name and address. The court’s

dismissal was not based on Sandoval’s delay but simply on

inactivity over a three-month period. Sandoval effected service on

the defendant, and no activity occurred after August 16, 1996,

probably because the defendant had not yet answered. Thus, the

district court’s dismissal is VACATED and the case REMANDED for

further proceedings.

Sandoval asks this court to appoint counsel for him. Inasmuch

as his lawsuit is not complex and does not present exceptional
circumstances, his motion is DENIED. See Ulmer v. Chancellor, 691

F.2d 209, 212 (5th Cir. 1982).