IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

m 01-20914

Summary Calendar

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NELDA HOLDEN; ET AL.,

Plaintiffs,

NELDA HOLDEN,

Plaintiff-Appellant,

VERSUS

SIMPSON PAPER COMPANY; ET AL.,

Defendants,

SIMPSON PASADENA PAPER COMPANY; PASADENA PAPER COMPANY, L.P.,

Defendants-Appellees,

_________________________

Appeal from the United States District Court

for the Southern District of Texas

m H-00-CV-1363

m H-00-CV-2100

_________________________

September 18, 2002
2

Before JONES, SMITH, and 

EMILIO M. GARZA, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Nelda Holden sued Simpson Paper Company (“Simpson”) for unlawful discharge. In

this litigation, she repeatedly refused to complywith the district court’s ordersto pay costs

assessed against her in a 1995 lawsuit against

Simpson. After Holden disobeyed its second

order to compel costs, the court dismissed her

new suit with prejudice for failure to comply

with orders, enjoined her from filing any other

suitsin the Southern District of Texas without

court approval, and fined her an additional

$1,000. Concluding that Holden’s deliberate

disobedience of multiple court orders brought

these sanctions within the district court’s discretion, we affirm.

I.

In October 1995, Holden sued Simpson for

unlawful discrimination. Holden v. Simpson

Pasadena Paper Co., No. H-95-4989. In May

1997, the court granted Simpson’s motion for

summary judgment and entered a final order of

dismissal. The next month, the court assessed

$3,993.98 in costs, which Holden did not pay.

In April 2000, Holden brought the instant

suit against Simpson, Pasadena Paper Company, and various other entities. In August

2000, Simpson informed the court of the outstanding costs, whereupon the court issued an

order compelling Holden to pay Simpson “the

$3,993.98 taxed against her in H-95-4989.”

Simpson mailed three letters to Holden’s trial

counsel, Harold Dutton, to attempt recovery

of the costs. By the end of 2000, however,

neither Holden nor her attorney had contacted

Simpson about paying the debt or otherwise

complying with the order.

In January 2001, Simpson filed a motion

notifying the district court of Holden’s noncompliance, explaining its attempts to contact

her attorney. That month, the court issued its

second order directing Holden to negotiate a

payment plan with Simpson for the costs imposed in the first suit. When Holden explained

that she could not afford to pay, Simpson

offered to permit her to pay the debt in

monthly, interest-free installments of $114 and

prepared a promissory note to that effect.

Holden made only two payments of $114 and

refused to sign the promissory note.

In July 2001, Simpson filed another notice

ofHolden’s non-compliance and suggested the

impositionoffurthersanctions, whereupon the

court ordered her to appear to explain her

noncompliance. The court promptly held a

hearing and concluded that Holden had no reasonable basis for refusing to pay. Although

Holden explained she had been unable to obtain work, she also stated that she had used a

lump sum severance payment to pay off the

note on her house, and the court concluded

she had not looked for work diligently.

The court entered three sanctions: (1) It

dismissed the instant suit; (2) it entered what

the parties have styled a preclusion order, barring Holden from filing another suit in the

Southern District of Texas “without the

court’swritten permission inadvance”; and (3)

it ordered her to pay an additional $1,000 in

sanctions to Simpson Pasadena Paper Company. During the hearing, the court described

the first two orders as “infinitely reviewable,”

* 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.
3

and explained that it would consider vacating

those orders if she paid the costs in full. In

January 2002, the court entered an order certifying the dismissal and preclusion orders for

appeal under FED. R. CIV. P. 54.

II.

Holden relies on our cases describing the

standards for dismissal under FED. R. CIV. P.

41 for failure to prosecute. Rule 41, however,

also gives courts the power to dismiss for deliberate and flagrant disobedience of court orders. Such dismissals are presumed to be with

prejudice.1

To dismiss with prejudice for disobedience,

the court must find that (1) the plaintiff

deliberately or contumaciously refused to

comply with (2) multiple or repeated court

orders (3) despite the imposition of lesser

sanctions. Long v. Simmons, 77 F.3d 878, 880

(5th Cir. 1996).2 A dismissal with prejudice is

“an extreme sanction that deprives the litigant

of the opportunity to pursue his claim.”

Callip, 757 F.3d at 1519 (citation and internal

quotation omitted). We review such a

dismissal for abuse of discretion. Long, 77

F.3d at 879.

Simpson met itsrequired burden of proving

that Holden had knowingly and deliberately

disobeyed the court orders.3 Holden argues

1

 Rule 41(b) provides: 

For failure of the plaintiff to prosecute

or to comply with these rules or any order of

court, a defendant may move for dismissal

of an action or of any claim against the

defendant. Unless the court in its order for

dismissal otherwise specifies, a dismissal

under this subdivision and any dismissal not

provided for in this rule, other than a

dismissal for lack of jurisdiction, for

improper venue, or for failure to join a party

under Rule 19, operates as an adjudication

on the merits.

FED. R. CIV. P. 41(b). Although the text of rule

41(b) suggests the defendant needs to move for

dismissal, district courts have the inherent power to

raise the possibility of dismissal sua sponte. Link

v. Wabash R.R., 370 U.S. 626, 630-31 (1962)

(failure to prosecute); Martinez v. Johnson, 104

F.3d 769, 772 (5th Cir. 1997) (disobeying court

order).

2

In the line of cases describing dismissals for

failure to prosecute, we have considered other

aggravating factors, such as whether the plaintiff

or attorney caused the delay, the delay prejudiced

the defendant, or the attorney acted intentionally.

Callip v. Harris County Child Welfare Dep’t, 757

F.3d 1513, 1519 (5th Cir. 1985). It is uncertain

whether these same aggravating factors apply to a

dismissalfor a party’s refusal to obey court orders.

We do not need to reach the question, because the

boilerplate test adequately measures many of these

factors and justifies the dismissal.

3 Connolly v. Papachristid Shipping, Ltd., 504

F.2d 917, 920 (5thCir. 1974) (reversing rule 41(b)

dismissal because noncompliance appeared

inadvertent rather than deliberate);Council of Federated Org. v. Mize, 339 F.2d 898, 900 (5th Cir.

1964) (reversing because “it must be inferred from

the record that counsel for the plaintiffs

misunderstood the district court’s order . . . and

their absence was not willful or in bad faith”);

8 JAMES WM. MORE ET AL., MOORE’S FEDERAL

PRACTICE § 41.53, at 203-04 (3d ed. 2002)

(“[T]he district court need only find that a party

acted deliberately rather than accidently, and need

not find bad faith.”). See Bonaventure v. Butler,

593 F.2d 625, 626 (5th Cir. 1979) (interpreting

FED. R. CIV. P. 37(b) to permit dismissal where

party repeatedly and deliberately refused to appear

for deposition); Durgin v. Graham, 372 F.2d 130,

(continued...)
4

that because we have most commonly upheld

involuntary dismissals for unjustified delays

and excessive,frivolous, and abusive litigation,

those are the exclusive grounds for proving

wilfulness or bad faith under rule 41(b). Most

ofthose cases, however, considered dismissals

for failure to prosecute.4 

Rule 41(b) makes ignoring a court rule or

order a separate ground for involuntary dismissal. And it is difficult to imagine how a

plaintiff can disobey a court order more

willfully or in worse faith than when she has

knowledge of the order and deliberately

disobeys it. Holden fails to articulate a

coherent, competing standard that would

validate her conduct,5but merely invokes the

buzzwords “bad faith” and “wilfulness,” which

have no meaning in a vacuum.

The district court had little difficulty

concluding that Holden had deliberately

disobeyed the order. After June 1997, the

order imposing costs should have placed

Holden on notice. Simpson’s subsequent and

repeated attemptsto contact her went ignored.

By the time of the sanctions hearing, the court

had twice ordered her to pay the outstanding

costs. 

At the sanctions hearing, Holden never

even tried to argue that she misunderstood her

legal obligations in 1997. Despite

understanding those obligations, she failed to

satisfy them over a period of four years. The

record evidence overwhelminglydemonstrates

her deliberateness.

To support its dismissal, the district court

pointed to a series of court orders that Holden

had ignored for over four years. The district

court cannot dismiss for a plaintiff’s isolated

failure to comply with a single order; minor

infractions are not enough.6 We have affirmed

3

(...continued)

131 (5th Cir. 1967) (same).

4

In this portion of her brief, Holden cites cases

with only tangential relevance. E.g., Smith v. Legg

(In re United Markets Intn’l, Inc.), 24 F.3d 650,

654 (5th Cir. 1994) (affirming sanction of over

$60,000 based on frivolous claims and appeals);

Natural Gas Pipeline Co. v. Energy Gathering,

Inc., 2 F.3d 1397, 1411-12 (5thCir. 1993)(finding

that attorney acted in bad faith by deliberately

disobeying court orders, but vacating sanction

compelling him to turn over personal tax records

because it lacked relation to his misconduct and

intruded on his personal privacy); EEOC v. Gen.

Dynamics Corp., 999 F.2d 113, 119 (5th Cir.

1993) (reversing sanctions for failure to comply

with discovery orders because district court did not

find that attorney had acted deliberately or

wilfully); Gelabert v. Lynaugh, 894 F.2d 746,

747-48 (5th Cir. 1990) (affirming dismissal of

claim for frivolous and abusive litigation).

5 Holden does not argue that the failure to pay

was her attorney’s fault. We usually do not punish parties for counsel’s mere negligence or in-

(continued...)

5

(...continued)

advertence. District courts may use a dismissal

with prejudice to punish an attorney’s negligence

only in “extreme and unusual circumstances.”

Hassenflu v. Pyke, 491 F.2d 1094, 1095 (5th Cir.

1974).

6 E.g., Neal v. IAM Local Lodge 2386, 722

F.2d 247, 249 (5th Cir. 1984) (reversing dismissal

for missing “one of these deadlines by a few

days”), overruled on other grounds, Baldwin

County Welcome Ctr. v. Brown, 466 U.S. 147,

149-50 (1984); Houston Citizens Bank & Trust

Co. v. Dolleslager (In re Dolleslager), 618 F.2d

322, 326 (5th Cir. 1980) (reversing dismissal for

failure to obey single pretrial order requiring

(continued...)
5

dismissals, however, where the plaintiffs have

failed either to comply with a series of court

orders7or comply with a single court order

despite many opportunities to do so.8 

The instant case fallssquarelyinto the latter

category. Holden disobeyed at least three

orders to pay the costs over a period of four

years. Her disobedience was grave enough to

warrant dismissal with prejudice.

A district court must at least consider and

reject less drastic measures. Hornbuckle v.

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

(5th Cir. 1984). In most cases, the court

should attempt to use less severe sanctions

before resorting to involuntary dismissal.

Gonzalez v. Trinity Marine Group, Inc., 117

F.3d 894, 898 (5th Cir. 1997); McNeal v. B.H.

Papasan, 842 F.2d 787, 793 (5th Cir. 1988).

If those measures would be ineffective,

however, the court may involuntarily dismiss

with prejudice.9

Here, the court settled on dismissal as the

only sanction likely to be effective. In doing

so, the court exercised sufficient patience.

Holden’srefusalto pay costsfromthe first suit

limited the disciplinary options; the court

reasonablyexpected that Holdenwould simply

ignore monetary fines. The court gave her

several opportunities to comply. In all, the

two district courts gave Holden three

opportunities to comply with the initial

assessment of costs.

When Holden failed to pay those costs, the

court was not limited to dismissing without

prejudice. Warnings give the district court latitude to dismiss with prejudice, Callip, 757

F.2d at 1521-22, and doing so was well within

the court’s discretion.

In at least three cases, we have considered

involuntarily dismissals based on failure to pay

6

(...continued)

amendment of complaint); Wrenn v. Am. Cast Iron

Pipe Co., 575 F.2d 544, 546 (5th Cir. 1978)

(finding that failure to pay partial filing fee despite

otherwise diligent prosecution should not justify

dismissal), overruled on other grounds, Baldwin

County Welcome Ctr., 466 U.S. at 149-50.

7 E.g., Dorsey v. Scott Wetzel Servs., Inc., 84

F.3d 170, 172 (5th Cir. 1996) (affirming dismissal

for failure to file joint pretrial order, failure to appear at docket call, failure to be set for trial, and

tardily designating expert); Berry v. CIGNA/RSICIGNA, 975 F.2d 1188, 1192 n.6 (5th Cir. 1992)

(“[W]here a plaintiff has failed to comply with

several court orders or court rules, we have held

that the district court did not abuse its discretion

. . . .”) (collecting cases).

8 E.g., Larson v. Scott, 157 F.3d 1030, 1032

(5th Cir. 1998) (affirming dismissal with prejudice

where prisoner plaintiff ignored order to file

statement of trust account and ignored subsequent

warning that failure to comply would result in dismissal); Martin-Trigona v. Morris, 627 F.2d 680,

682 (5th Cir. 1980) (affirming dismissal where

plaintifffailed to respond to motion to dismiss over

a period of thirteen months despite three orders to

do so); Hulsey v. Texas, 929 F.2d 168, 171 (5th

Cir. 1991) (finding that district court properly

dismissed complaint for failure to comply with

service order because court gave instructions and

opportunity to correct faulty service).

9

Sturgeon v. Airborne Freight Corp., 778 F.2d

1154 (5th Cir. 1985) (“When lessersanctions have

proved futile, a district court may properly dismiss

a suit with prejudice.”) (citation and quotations

omitted); Callip, 757 F.2d at 1521 (explaining that

providing the plaintiff with second and third chances to comply with order counts as a lesser

sanction).
6

costs assessed in an earlier case. In Duchardt

v. Ewing, 571 F.2d 869, 870-71 (5th Cir.

1978), we reversed an automatic, involuntary

dismissal where the plaintiff had attempted to

challenge the costs in the first case but used

the wrong procedural vehicle. We classified

the dismissal sanction as too harsh where the

plaintiff did not have an opportunity to

articulate his reasons for defeating cost

recovery. Id. In Gelabert, 894 F.2d at 748,

however, we affirmed an involuntary dismissal

with prejudice where an overly litigious

plaintiff had failed to pay a $10 fine from an

earlier case. In Balawajder v. Scott, 160 F.3d

1066, 1067 (5th Cir. 1999), we affirmed an

involuntary dismissalwithout prejudice for the

plaintiff’sfailure to comply with other courts’

sanctions orders. Emphasizing the plaintiff’s

history of frivolous litigation, we noted that

one court could validly enforce other courts’

orders with the sanction of involuntary

dismissal. Id. at 1067-68. Neither Gelabert

nor Balawajder cites or considers Duchardt.

We interpret Duchardt as limited to cases

in which the plaintiff assertsthat the first court

shifted costs only because the plaintiff had

made a procedural error and the second court

did not give the plaintiff an opportunity to explain or complybefore dismissal. In Duchardt,

although we did not spell out the insufficiency,

the district court violated one of our traditional

requirements for a rule 41(b) dismissal. As

early as 1976, we had vacated a decision for

failing to consider thoroughly less severe

sanctions. Boazman v. Economics Lab., Inc.,

537 F.2d 210, 213-14 (5th Cir. 1976). 

In Duchardt, the district court

automatically dismissed without considering

lesser sanctions or warning the plaintiff. We

imposed this requirement to avoid precisely

the risk we described as acute in Duchardt.

Without more lenient sanctions and an

opportunity to respond, the plaintiff never had

the opportunity to explain that the first court

assessed costs only because of his procedural

error. The dismissing court, therefore, could

never consider the severity of the plaintiff’s

disobedience in the context of the first court’s

substantive reasons for shifting costs.

By contrast, in this case the dismissing

court displayed great patience and considered

Holden’s arguments against dismissal. The

court not only issued a new order compelling

payment, but, when Holden failed to comply

with that order, the dismissing court issued a

second order. Only after Holden failed to

comply with that second order did the court

order a hearing to consider further sanctions.

At that hearing, Holden argued only that

she did not have the ability to pay. She

admitted, however, that she had received a

severance payment after the assessment of

costs and used the money to pay off her house

note. She also admitted that she had refused

to negotiate a reasonable regular payment plan

with Simpson despite their repeated attempts

to contact her. 

The court certainly could have concluded

that Holden had the money to pay the costs

and that she had no valid objection to the original order. Because Holden received

adequate notice and an opportunity to explain,

this case differsfundamentallyfromDuchardt.

Instead, we rely on our general caselaw

governing rule 41(b) dismissals, Gelabart, and

Balawajder. All of these sources point toward

affirming the involuntary dismissal.

III.

The district court also imposed a $1,000

sanction. At the hearing, the court appeared
7

to base its sanction on the costs generated by

Holden’s refusal to pay the original costs assessed in 1997. Because Holden did not voluntarily dismiss her 1995 suit, rule 41(d) did

not authorize the sanction.10 We have held,

however, that district courts have the inherent

power to sanction litigants for abusive

conduct.11 We review the exercise of those

inherent powers for abuse of discretion.

Natural Gas Pipeline Co. of Am. v. Energy

Gathering, Inc., 86 F.3d 464, 467 (5th Cir.

1996).

Holdenessentiallyrepeatsthe argumentshe

made for reversing the dismissalSSbad faith is

required, and she did not act in bad faith.

Once again, she cites casesinvolving frivolous

or repetitive litigation and assumes that is the

only example of litigants abusing the litigation

procedure in bad faith. She is wrong.

Deliberately disobeying court orders demonstratessufficient bad faith to justify a district

court’s sanction under its inherent powers. In

Toon, 250 F.3d at 953-54, we affirmed a

$15,000 sanction where an attorney had ignored an order to file a motion under seal. In

Natural Gas Pipeline, 2 F.3d at 1409-11, we

labeled an attorney’s bald refusal to comply

with three court ordersto turn over documents

as “bad faith.” The repeated refusal to comply

with court orders demonstrates “bad faith” and

amply supports the sanctions awarded in this

case.

Finally, Holden argues that she does not

have the money, and the district court should

have been sensitive to her in forma pauperis

status. A litigant’s poverty should not make

him immune to the courts’ discipline.

Monetary fines mean less to insolvent defendants, making them less effective for deterring

abuse of the judicial system. In re Sindram,

498 U.S. 177, 179-80 (1991) (explaining

diminished deterrent effect on pro se

prisoners). We will not limit the scope of

courts’ inherent powers over these defendants

in a way that will exacerbate the problem.

For those reasons, we have previously held

that a litigant’s in forma pauperis status does

not automaticallyshield himfromsanctionsfor

abusing the litigation process. In re United

Markets Int’l, 24 F.3d at 855-56; Gelabert,

894 F.2d at 748. The Supreme Court has similarly interpreted the in forma pauperisstatute

not to include waiver of filing fees for

frivolous or abusive suits.12

10 Rule 41(d)shifts costs for lawsuits dismissed

by the plaintiff and later recommenced:

If a plaintiff who has once dismissed an

action in any court commences an action

based upon or including the same claim

against the same defendant, the court may

make such order for the payment of costs of

the action previously dismissed as it may

deem proper and may stay the proceedings

in the action until the plaintiff has complied

with the order.

FED. R. CIV. P. 41(d).

11 Toon v. Wackenhut Corrections Corp., 250

F.3d 950, 952 (5th Cir. 2001) (“When a party’s

deplorable conduct is not effectively sanctionable

pursuant to an existing rule or statute, it is

appropriate for a district court to rely on its

inherent powers to impose sanctions.”) (citation

and quotations omitted); Natural Gas Pipeline, 2

F.3d at 1407 (same).

12 E.g., Demos v. United States District Court

(In re Demos), 500 U.S. 16, 17 (1991) (“Petitioner

has abused the system, and we find it appropriate

to deny leave to proceed in forma pauperis to

(continued...)
8

Holden has not presented record evidence

that her impoverished status should justify

reversing the sanctions for her admitted

misbehavior. The district court’s orders

reflected that she only needed to begin paying

the costs. Simpson attempted to arrange a

monthly, interest free payment plan. Holden

refused to sign a promissory note

memorializing the payment plan and stopped

making payments without notice or

explanation. 

In the face of these accommodations, Holden at least had an obligation to bring her financial circumstancesto the attention of either

Simpson or the court and negotiate a new payment plan. She did not do so, and the court

had the discretion to sanction her harshly for

her pattern of contumacious conduct.

AFFIRMED.

12(...continued)

petitioner in these two petitions for extraordinary

relief . . . and in all future petitions for

extraordinary relief.”); In re McDonald, 489 U.S.

180, 184 (1989) (suspending in forma pauperis

status for all future writ applications because of

past abuses).