Lathum v. Lopez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-50146 Summary Calendar

MICHAEL LATHUM,

Plaintiff-Appellant,

versus

P. LOPEZ; R. SUTHERLAND,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. P-96-CV-59 - - - - - - - - - - August 7, 1997 Before JOLLY, BENAVIDES and PARKER, Cirucit Judges.

PER CURIAM:*

Michael Lathum, Texas state prisoner #634529, appeals from

the district court’s dismissal of his civil rights complaint for

his failure to comply with a court order. The district court’s

memorandum opinion states that the dismissal was without

prejudice, but the court’s final judgment reflects that the

dismissal was with prejudice. A dismissal with prejudice is

inappropriate because there is no clear record of delay or

contumacious conduct by Lathum nor is there a showing in the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 97-50146 -2-

record that the district court considered or employed lesser

sanctions. See Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1190-91

(5th Cir. 1992). If the dismissal was without prejudice,

appellate review is impossible because, without a copy of

Lathum’s complaint, the court is unable to determine whether his

claims are barred by the two-year limitations period, and, thus,

were effectively dismissed with prejudice. See McNeal v.

Papasan, 842 F.2d 787, 793 n.1 (5th Cir. 1988). Additionally, a

review of the record shows that Lathum did submit financial

documents to the district court. Accordingly, the judgment of

the district court is VACATED and the case REMANDED for further

proceedings.