Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

United States Court of Appeals,
Fifth Circuit.
No. 95-31308
Summary Calendar.
Tyronne CLOFER, Plaintiff-Appellant,
v.
Kenneth L. PEREGO, Doctor; Unknown Security Officers at LSP; Larry Smith, Warden at LSP;
John P. Whitley; Susan Bankston, Doctor; Robert J. Barnes; Bert Ducote, Doctor; W. Riddle, Sgt.,
Defendants-Appellees.
March 3, 1997.
Appeal from the United States District Court for the Middle District of Louisiana.
Before WISDOM, KING and SMITH, Circuit Judges.
PER CURIAM:
Tyronne Clofer is a Louisiana State Penitentiary (Angola) inmate. In October 1989, Clofer
filed a § 1983 action against four members of the Angola medical staff, an emergency medical
technician, and Warden John P. Whitley alleging their deliberate indifference to his serious medical
needs. Clofer requested declaratory and injunctive relief and monetary damages.
The district court found that Clofer's case presented exceptional circumstances under Ulmer
v. Chancellor,1 and appointed David Ferguson to represent Clofer. In November 1992, Clofer moved
the court to dismiss Ferguson for failure to provide adequate representation. This motion was denied.
As the case proceeded to trial, Ferguson consistently failed to appear for scheduled hearings.
Ferguson missed pretrial conferences on March 19, 1993, January 7, 1994, and October 25, 1995.
On November 15, 1995 the district court considered Ferguson's dereliction and determined that
dismissal of the suit with prejudice was the appropriate sanction.
On November 28, 1995 Clofer filed a motion to reinstate his case arguing that it was unfair
to punish him for his court appointed attorney's inadequate representation. The district court denied
1691 F.2d 209 (5th Cir.1982).
1

this motion. Clofer appeals.
We review the district court's dismissal of an action for abuse of discretion.2 A district court
has the inherent authority to dismiss an action sua sponte for failure to prosecute, with or without
notice to the parties,3 but "[d]ismissals with prejudice are reserved for the most egregious of cases,
usually cases where the requisite factors of clear delay and ineffective lesser sanctions are bolstered
by the presence of at least one of the aggravating factors".4 "Those aggravating factors include (1)
delay resulting from intentional conduct, (2) delay caused by the plaintiff personally, and (3) delay
causing prejudice to the defendant."5
In this case, Ferguson alone is responsible for the plaintiff's failure to prosecute this action.
Clofer was represented by an irresponsible attorney that the court refused to dismiss. In these
circumstances, it is contrary to the most fundamental ideas of justice and fairness to punish Clofer for
Ferguson's dereliction. Clearly, some sanction is appropriate, but we feel sanctions directed at the
attorney would be more effective and at the same time preserve Clofer's right to a trial on the merits.
Accordingly, the district court's ruling is VACATED, and the case is REMANDED to the
district court for entry of an order reinstating this action and consideration of the appropriate
sanction.

2Boudwin v. Graystone Ins. Co., 756 F.2d 399, 401 (5th Cir.1985).
3Link v. Wabash Railroad Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1388-89, 8 L.Ed.2d 734
(1962); Rogers v. Kroger Co., 669 F.2d 317, 319-20 (5th Cir.1982).
4Boudwin v. Graystone Ins. Co., 756 F.2d 399, 401 (5th cir.1985); Rogers v. Kroger, 669
F.2d 317, 320 (5th Cir.1982)
5Boudwin, 756 F.2d at 401 (citing Morris v. Ocean Systems, Inc., 730 F.2d 248 (5th
Cir.1984)).
2