* District Judge of the Northern District of Texas,

sitting by designation.

** 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that this opinion should not be published and is not precedent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. 96-40910

 

ARNOLD DAVILA,

Plaintiff-Appellant,

v.

KEITH PRICE, Warden, Individually and in his capacity

as Warden; E HIGHTOWER, Individually and in his

official capacity as Unit Classification Committee

Member; “DENNER”, Individually and in her official

capacity as Investigator; “BLACK MAN”, Individually and

in his official capacity; O’REILLY, Warden; “WILLIAMS”,

Individually and in his official capacity; JAMES ANDY

COLLINS,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(G-9-CV-325)

_________________________________________________________________

October 6, 1997

Before KING and JONES, Circuit Judges, and KENDALL,* District

Judge.

PER CURIAM:**
2

Plaintiff-appellant Arnold Davila appeals the district

court’s dismissal of his civil rights complaint for failure to

prosecute pursuant to Federal Rule of Civil Procedure 41(b). We

affirm the judgment of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1992, Arnold Davila, an inmate at the Darrington Unit of

the Texas Department of Criminal Justice (TDCJ), filed a pro se

and in forma pauperis civil rights complaint against numerous

TDCJ officials pursuant to 42 U.S.C. § 1983. Davila alleged that

TDCJ officials had retaliated against him for filing various

other lawsuits on behalf of himself and other inmates.

In August 1992, the magistrate judge ordered Davila to

submit a more definite statement of the facts concerning his

action and warned Davila that failure to comply with his order

within thirty days might result in dismissal of the action. The

record indicates that Davila filed no pleadings until March 1995,

when he submitted a motion for a writ of mandamus against the

magistrate judge. Although he argued in a general manner that

the magistrate’s consideration of the case was prejudiced, Davila

gave no clear indication that he had or would comply with the

magistrate judge’s order to file a more definite statement. The

bulk of the motion concerned Davila’s allegation that his goodtime credits were not being calculated properly.
3

In December 1995, as a result of Davila’s failure to comply

with his order to file a more definite statement, the magistrate

judge recommended that the district court dismiss Davila’s

complaint without prejudice for failure to prosecute pursuant to

Federal Rule of Civil Procedure 41(b). The magistrate judge

further noted that “a review of the pleadings at this stage

suggests that this case lacks merit and could potentially be

dismissed as frivolous.” Davila objected to the recommendation,

arguing that the magistrate judge was “playing active role of

counsel for the defendants” and “[v]oicing opinions that lack

merit.” Davila further asserted that he had answered the

magistrate judge’s order on September 6, 1992, and he offered to

provide the court with copies of his reply. Moreover, he

insulted the court, suggesting that the magistrate judge was

lying because he had been “bought off” by the defendants.

On August 15, 1996, after conducting a de novo review of the

record, the district court adopted the magistrate judge’s report

and recommendation and dismissed the complaint without prejudice

for want of prosecution. Davila filed a timely notice of appeal

on September 3, 1996, and this court granted Davila leave to

proceed in forma pauperis.

On appeal, Davila contends that the district court abused

its discretion by dismissing his complaint because he was not “at

fault” and because he actually had answered the magistrate

judge’s order for a more definite statement. He argues that the
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dismissal without prejudice of his complaint actually operates as

a dismissal with prejudice because the statute of limitations

prevents him from refiling the suit.

II. STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 41(b), a

district court may dismiss sua sponte an action for failure to

prosecute or for failure to comply with any court order. 

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

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

We review a dismissal under Rule 41(b) for abuse of discretion. 

Id. In this case, however, the dismissal operates as a dismissal

with prejudice because the statute of limitations has run. Long

v. Simmons, 77 F.3d 878, 880 (5th Cir. 1996). Where the

dismissal operates as a dismissal with prejudice, the district

court should give “full regard [to] the severity of the

sanction,” but abuse of discretion remains the standard of review

that this court applies. Ramsay v. Bailey, 531 F.2d 706, 708

(5th Cir. 1976), cert. denied, 429 U.S. 1107 (1977).

II. DISCUSSION

A significant body of case law exists in this circuit

describing what constitutes an abuse of discretion where a case

is dismissed with prejudice. Such a dismissal is appropriate
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only if there is a “‘“clear record of delay or contumacious

conduct by the plaintiff, . . . , and when lesser sanctions would

not serve the best interests of justice.”’” Callip v. Harris

County Child Welfare Dep’t, 757 F.2d 1513, 1519 (5th Cir. 1985)

(quoting Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir. 1982)

(quoting Pond v. Braniff Airways, Inc., 453 F.2d 347, 349 (5th

Cir. 1972)) (omission in original)). Moreover, we consistently

have required that the “record reflect[] that the district court

employed lesser sanctions before dismissing the action.” Long,

77 F.3d at 880. Lesser sanctions might include “[a]ssessments of

fines, costs, or damages against the plaintiff . . . , . . .

conditional dismissal, dismissal without prejudice, and explicit

warnings.” Callip, 757 F.2d at 1521 (quoting Rogers, 669 F.2d at

322); see also Gist v. Lugo, 165 F.R.D. 474, 478 (E.D. Tex. 1996)

(noting the importance of “clearly warning plaintiff that he

risked dismissal”). Finally, in most cases where a dismissal

with prejudice has been affirmed, we have found that one or more

of three “aggravating factors” were present: “(1) delay

attributable directly to the plaintiff, rather than his attorney;

(2) actual prejudice to the defendant; and (3) delay caused by

intentional conduct.” Callip, 757 F.2d at 1519. Where the

district court has not complied with these requirements, we must

conclude that it abused its discretion in dismissing the action.
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Looking first at the issue of explicit warnings, we note

that Davila was clearly warned that failure to file the more

definite statement could result in dismissal of his case.

Looking next at the issue of alternative sanctions, we

recognize that the majority of the lesser sanctions available to

a district court are unlikely to create the same incentive to

comply in a litigant who proceeds in forma pauperis, and is

therefore essentially judgment proof, than in the average

litigant who pays her own way in court. Cf. Neitzke v. Williams,

490 U.S. 319, 324 (1989) (“[A] litigant whose filing fees and

court costs are assumed by the public, unlike a paying litigant,

lacks an economic incentive to refrain from filing frivolous,

malicious, or repetitive lawsuits.”); Burns v. C/O Glick, 158

F.R.D 354, 356 (E.D. Pa. 1994) (finding dismissal to be the only

appropriate sanction because in forma pauperis plaintiff could

not pay any costs or fees assessed against him). Thus, in a case

such as this, where the majority of alternative sanctions are

likely to be useless, we apply with some leniency and flexibility

the general rule that the district court must consider such

action before dismissing a case.

Turning to the matter of delay, by the time the magistrate

judge recommended the dismissal of Davila’s case, nearly three

years had passed since the issuance of the order for a more

definite statement. A time period of that length with no action
1 The only communication that the record reveals Davila

to have had with the court between the Order for a More Definite

Statement and the magistrate’s Report and Recommendation is the

aforementioned “Pro-Se Writ of Mandamus,” in which Davila accused

the magistrate judge of “prejudicing” his case and of failing to

act in “good faith.”

2On appeal, Davila has appended to his brief exhibits which

include (1) a letter, purportedly dated September 6, 1992, to an

unspecified court clerk indicating that Davila had forwarded a

more definite statement; (2) the purported more definite

statement; and (3) a mailroom log indicating that an unidentified

piece of legal mail had been forwarded to the district court on

September 9, 1992. While the documents submitted by Davila

arguably support his claim that he responded to the magistrate

judge’s order, this court ordinarily will not enlarge the record

on appeal to include material not before the district court. 

United States v. Flores, 887 F.2d 543, 546 (5th Cir. 1989). 

Thus, we do not consider the information appended to the

appellate brief.

7

in a case1 clearly works against Davila. It is a litigant’s

responsibility to ensure that his pleadings are filed with the

court in a proper and timely manner and that the case is kept

moving. We note that here, the sanctions issue is intertwined

with the delay issue. The district court’s judgment dismissed

the case without prejudice, which is one of the lesser sanctions

mentioned in a number of our cases. It is the length of the

delay, chargeable on this record to Davila, that has operated to

turn that dismissal into one with prejudice.

We turn next to Davila’s claim that he objected to the

dismissal, arguing that he had complied with the order and

offering to supply the court with another copy of his more

definite statement. Davila provided no evidence supporting his

assertion.2 The district court did not abuse its discretion in
8

concluding that this was not an adequate response. Davila had

been advised that his case would be dismissed if he failed to

file the more definite statement as ordered, and he had been

further advised that it had not been filed. Rather than simply

offering to supply the court with another copy and attempting to

put the burden on the court to ask for one, Davila should have

tendered the more definite statement and evidence that it had

been sent off for filing. Had he done so, the district court’s

response might well have been different, as might ours.

Finally, we note that it was within the district court’s

discretion to conclude that Davila’s disrespect for the court, as

evidenced by his continued insulting of the court’s integrity

throughout his briefs, constituted contumacious conduct

warranting a dismissal. On this record, we cannot conclude that

the district court’s decision to use the ultimate sanction of

dismissal (with prejudice as it has turned out) constituted an

abuse of discretion. 

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.
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