Duncan v. Smith

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 11, 1995
• Docket: 95-60422
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-60422 Conference Calendar __________________

WENDELL A. DUNCAN,

Plaintiff-Appellant,

versus

VICTOR SMITH, PERCY MILES, SILVESTER HOWARD,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Mississippi USDC No. 95-CV-96-S-O - - - - - - - - - -

(October 18, 1995) Before POLITZ, Chief Judge, and REAVLEY and SMITH, Circuit Judges.

PER CURIAM:*

Wendell A. Duncan appeals the district court's dismissal

without prejudice of his civil rights action for failure to

prosecute.

A district court may sua sponte dismiss an action for

failure to prosecute or to comply with a court order. McCullough

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

* 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 Pursuant to that Rule, the court has determined that this opinion should not be published. No. 95-60422 -2-

dismissal is reviewed for an abuse of discretion. Id. However,

the scope of the district court's discretion is narrow when the

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

limitations would bar reprosecution of a suit dismissed without

prejudice under Rule 41(b). Berry v. CIGNA/RSI-CIGNA, 975 F.2d

1188, 1190-91 (5th Cir. 1992). Here, the district court

specified that the dismissal was without prejudice.

Because the dismissal by the district court was without

prejudice and no statute of limitations bars the refiling of his

claim, Duncan has not suffered prejudicial harm resulting from

the dismissal. See McCullough, 835 F.2d at 1127. "In such

circumstances trial courts must be allowed leeway in the

difficult task of keeping their dockets moving." Id. The

dismissal without prejudice of Duncan's complaint does not

constitute an abuse of discretion.

AFFIRMED.

Duncan's "Motion to Show the Court How the Lower Courts are

Aiding the Defendants" is DENIED.