IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-20374

Summary Calendar

DAVID EARL KEITH,

Plaintiff-Appellant

v.

WARDEN E. GUTIERREZ; OFFICER C. CARR; P. ASSISTANT MENDEZ,

Defendants-Appellees

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:13-CV-1928

Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

David Earl Keith, Texas prisoner # 1841789, appeals the dismissal of his 

42 U.S.C. § 1983 complaint under Federal Rule of Civil Procedure 41(b) for 

failure to prosecute and to comply with a court order. Keith argues that the 

district court erred in dismissing his case.

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

or obey a court order. FED. R. CIV. P. 41(b); McCullough v. Lynaugh, 835 F.2d 

 

* 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

July 27, 2015

Lyle W. Cayce

Clerk

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No. 14-20374

2

1126, 1127 (5th Cir. 1988). Because the court’s order was silent as to whether 

the instant dismissal was with prejudice, we deem the dismissal to be with 

prejudice. Edwards v. City of Houston, 78 F.3d 983, 994 (5th Cir. 1996). 

Though we review the decision for abuse of discretion, the scope of the district 

court’s discretion is narrow when the dismissal is with prejudice. Berry v. 

CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992). We will affirm a 

dismissal with prejudice under Rule 41(b) only where there is a clear record of 

delay or contumacious conduct by the plaintiff and where the district court has 

determined that lesser sanctions were or would be futile. Long v. Simmons, 77 

F.3d 878, 880 (5th Cir. 1996).

The district court’s dismissal of Keith’s complaint was based on Keith’s 

failure to comply with the district court’s April 30, 2014 order. Noncompliance 

with a single court order, however, does not amount to a clear record of delay, 

i.e., significant periods of inactivity, or contumacious conduct, “stubborn 

resistance to authority.” Berry, 975 F.2d at 1191-92 n.5; McNeal v. Papasan, 

842 F.2d 787, 792 (5th Cir. 1988); Holden v. Simpson Paper Co., 48 F. App’x 

917, *2 (5th Cir. 2002). A district court generally may not dismiss with 

prejudice if the plaintiff “fail[s] only to comply with a few court orders.” Berry, 

975 F.2d at 1192 & n.6. Moreover, there is no discussion in the record of other, 

lesser sanctions considered by the court. Accordingly, under the circumstances 

described, the dismissal of Keith’s complaint was an abuse of discretion. 

Keith additionally asserts on appeal that the district court erred when it

denied his motion for appointment of counsel. To the extent Keith moved the 

district court to appoint counsel, he has not shown that the district court 

abused its discretion when it failed to appoint counsel. See Baranowski v. Hart, 

486 F.3d 112, 126 (5th Cir. 2007); Ulmer v. Chancellor, 691 F.2d 209, 212 (5th 

Cir. 1982).

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The judgment is VACATED, and the case is REMANDED for further 

proceedings.

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