* Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the Court has determined

that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-10071

Summary Calendar

_____________________

Michael Lee Hastey,

Plaintiff/Appellant,

versus

City of Plainview; Chief of Police, Plainview

Police Department; Officer Joe Champion; Officer

Derrick McPherson; and Officer Forrest Chapman,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

For the Northern District of Texas

(5:93 CV 336 C)

_________________________________________________________________

(June 23, 1995)

Before JOHNSON, JOLLY and DAVIS, Circuit Judges.*

JOHNSON, Circuit Judge:

Michael Lee Hastey brought suit, pro se and in forma

pauperis, against the City of Plainview and against a host of

city officials. The district court dismissed the action pursuant

to Fed. R. Civ. P. 16(f) because Hastey failed to comply with the

court's scheduling order. Hastey appeals and we VACATE and

REMAND.
2

I. FACTS AND PROCEDURAL HISTORY

In his complaint, Hastey contended that some defendants

conspired to convict him of theft. Hastey also alleged that one

defendant used excessive force against him in connection with a

DUI arrest and that other defendants conspired to cover up the

use of force. Finally, Hastey contends that the City of

Plainview should have had a policy to screen overly aggressive

police officers and to review the actions of those officers. 

 The defendants implicated in the alleged conspiracy to

convict Hastey of theft, which included a judge and three

prosecuting attorneys, were granted summary judgment by the

district court on July 7, 1994. Hastey's claims against those

defendants were severed from the instant case.

The remaining defendants, who are the appellees herein, also

filed a motion for summary judgment on qualified immunity

grounds. That motion, however, was denied. Additionally, the

defendants moved for sanctions against Hastey for failing to

attend his scheduled deposition and the defendants requested that

the court compel Hastey to attend a later-scheduled deposition. 

These motions were denied as well.

The district court, on July 1, 1994, issued a pretrial

notice and order instructing the parties to submit their proposed

pretrial orders and other documents on December 19, 1994. The

court warned that, should any attorney fail to comply with this

order, dismissal or any other appropriate sanction might be

appropriate. As Hastey failed to comply with this order, the
 

1 The district court did not indicate whether this

dismissal was with or without prejudice. Generally, though, a

judgment that is silent regarding prejudice operates with

prejudice. Graves v. Hampton, 1 F.3d 315, 318 (5th Cir. 1993).

 

2 Additionally, most courts affirming dismissals have found

at least one of three aggravating factors: 1) delay caused by the

plaintiff himself and not his attorney; 2) actual prejudice to

the defendant; or 3) delay caused by intentional conduct. Price,

792 F.2d at 474.

3

district court, on December 20, 1994, dismissed1 Hastey's

complaint pursuant to Fed. R. Civ. P. 16(f). Hastey timely

appealed this dismissal.

II. DISCUSSION

This Court liberally construes the briefs of pro se

litigants. Price v. Digital Equip. Corp., 846 F.2d 1026, 1028

(5th Cir. 1988). Construed liberally, Hastey contends in his

brief that the district court erred in dismissing his complaint

for failure to comply with the scheduling order.

Federal Rule of Civil Procedure 16(f) provides that a court

may impose penalties, including a dismissal with prejudice, "[i]f

a party or party's attorney fails to obey a scheduling or

pretrial order." We review a district court's decision to

dismiss under Rule 16(f) only for an abuse of discretion. Price

v. McGlathery, 792 F.2d 472, 474 (5th Cir. 1986). However,

because a dismissal with prejudice is such a harsh sanction, the

district court should employ this penalty only when there is a

clear record of delay or contumacious conduct by the plaintiff

and lesser sanctions would not serve the best interests of

justice.2 John v. State of Louisiana, 828 F.2d 1129, 1131 (5th
4

Cir. 1987); McNeal v. Papasan, 842 F.2d 787, 790 (5th Cir. 1988). 

In the instant case, the record does not reflect a clear

pattern of delay or contumacious conduct by Hastey. It is true

that Hastey did not show up at his scheduled deposition, but the

district court denied the defendants' motion for sanctions on

that issue. Beyond that failure, there is little to show

contumacy or intentional delay. The most that can be said is

that Hastey filed his complaint and took no further action.

Moreover, no other sanction was ever employed nor is there

anything in the record to inform us as to whether the district

court ever even considered the efficacy of lesser sanctions. 

Instead, only one day after the final date for compliance with

the pre-trial order, the district court jumped immediately to a

death penalty sanction.

In their brief to this Court, the defendants argue that no

lesser sanction would have served the ends of justice because

Hastey, who was proceeding in forma pauperis, would have been

unable to satisfy any monetary sanction. It may be that no other

sanction would have sufficed. However, we are hampered in making

that determination because of a lack of such a finding by the

district court. See Hornbuckle v. Arco Oil & Gas Co., 732 F.2d

1233, 1237 (5th Cir. 1984) (when a district court dismisses with

prejudice findings of fact are essential for our consideration of

the inevitable argument that the dismissal was an abuse of

discretion). 

Undoubtedly, some sanction was warranted for the failure of
 

3 Hastey seeks the appointment of counsel in his appeal

arguing that he is unable to protect his rights owing to the

effects of certain prescription drugs he takes, his lack of legal

training and the complexity of the issues. However, there is no

automatic right to the appointment of counsel in a case pursuant

to 42 U.S.C. § 1983. Jackson v. Dallas Police Department, 811

F.2d 260, 261 (5th Cir. 1986). In fact, a court is not required

to appoint counsel in the absence of "exceptional circumstances." 

Cupit v. Jones, 835 F.2d 83, 86 (5th Cir. 1987). We see nothing

exceptional in these circumstances and we decline to appoint

counsel for Hastey.

5

Hastey to comply with the district court's order. We cannot,

though, on this record, justify a dismissal with prejudice when

no other sanctions have been tried or even considered. 

Accordingly, we remand the case to the district court for

consideration of the efficacy of lesser sanctions.3 Id.

III. CONCLUSION

For the reasons stated above, we VACATE the judgment of the

district court and REMAND this case for proceedings consistent

with this opinion.