IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20271

Summary Calendar

CLEOPHUS CARRAWAY,

Plaintiff-Appellant

v.

ZAE ZEON; JAMIE WILLIAMS; STEPHANIE OLIVER; KRYSTAL 

ROTRAMEL; JACKLYN FISHER; CMC PHARMACY; UNIVERSITY OF 

TEXAS MEDICAL BRANCH,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:16-CV-2754

Before KING, ELROD, and HIGGINSON, Circuit Judges:

PER CURIAM:*

Cleophus Carraway, Texas prisoner # 490329, appeals the district court’s 

dismissal of his 42 U.S.C. § 1983 complaint, in which he alleged that prison 

officials were deliberately indifferent to his serious medical needs. The district 

court dismissed the suit for failure to prosecute, without prejudice, pursuant 

to Rule 41(b) of the Federal Rules of Civil Procedure.

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

August 15, 2018

Lyle W. Cayce

Clerk

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No. 17-20271

2

A district court may sua sponte dismiss an action for failure to prosecute 

or to comply with any order. Fed. R. Civ. P. 41(b); McCullough v. Lynaugh, 

835 F.2d 1126, 1127 (5th Cir. 1988). The scope of the district court’s discretion 

is narrower when the Rule 41(b) dismissal is with prejudice or when a statute 

of limitations would bar re-prosecution of a suit dismissed under Rule 41(b) 

without prejudice. Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 

1992). In Carraway’s case, although the district court dismissed the suit 

without prejudice, the dismissal may have effectively been with prejudice due 

to the applicable two-year statute of limitations. Gartrell v. Gaylor, 981 F.2d 

254, 256 (5th Cir. 1993); TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a).

Where the limitations period “prevents or arguably may prevent” further 

litigation, the standard of review should be the same as that used when 

reviewing a dismissal with prejudice. Boazman v. Economics Laboratory, Inc., 

537 F.2d 210, 212-13 (5th Cir. 1976). This court will affirm dismissals with 

prejudice for failure to prosecute only when there is a clear record of delay or 

contumacious conduct by the plaintiff and the district court has expressly 

determined that lesser sanctions would not prompt diligent prosecution, or 

where the record shows that the district court employed lesser sanctions that 

proved to be futile. Berry, 975 F.2d at 1191-92 & nn.5-6.

There is not a clear record of purposeful delay or contumacious conduct 

by Carraway. The order of dismissal was issued on February 21, 2017, which 

was 18 days after February 3, 2017, the due date for Carraway’s reply to the 

motion to dismiss. Moreover, although he did not file the proper responsive 

pleading, Carraway attempted to litigate his claims during the relevant time 

period. See, e.g., McNeal v. Papasan, 842 F.2d 787, 789-91 (5th Cir. 1988) 

(providing that a delay warranting dismissal with prejudice must be longer 

than just a few months and must be characterized by significant periods of 

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total inactivity). Generally, where a plaintiff fails to comply with only a few 

court orders or rules, this court has held that the district court’s dismissal of a 

suit with prejudice is an abuse of discretion. See Berry, 975 F.2d at 1192 & n.6. 

Also, the district court did not determine that lesser sanctions would not

prompt diligent prosecution, and the district court did not employ lesser 

sanctions that proved to be futile. See id. Finally, the record does not establish 

the existence of the usual aggravating factors. See Millan v. USAA Gen. 

Indem. Co., 546 F.3d 321, 326 (5th Cir. 2008).

Accordingly, the district court’s dismissal of Carraway’s suit was an 

abuse of discretion. The district court’s judgment is VACATED and the case is 

REMANDED for further proceedings. Carraway’s motion to supplement the 

record is DENIED.

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