613 F.2d 114 (5tht Cir. 1980), 79-1234, Harrelson v. United States

Docket Nº:79-1234
Citation:613 F.2d 114
Party Name:Paul Louis HARRELSON, Plaintiff-Appellant, v. UNITED STATES of America et al., Defendants-Appellees.
Case Date:March 07, 1980
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 114

613 F.2d 114 (5tht Cir. 1980)

Paul Louis HARRELSON, Plaintiff-Appellant,


UNITED STATES of America et al., Defendants-Appellees.

No. 79-1234

Summary Calendar. [*]

United States Court of Appeals, Fifth Circuit

March 7, 1980

Page 115

James Q. Smith, Wichita Falls, Tex., for plaintiff-appellant.

Wm. L. Johnson, Jr., Asst. U. S. Atty., Fort Worth, Tex., for Federal defendants-appellees.

Richard E. Whinery, Dallas, Tex., for Taylor and Miller.

James H. Martin, David C. McCord, Jr., pro se.

Charles J. Baldree, Asst. Dist. Atty., Dallas, Tex., for Jones, Wade and Walker.

Lonny D. Morrison, Wichita Falls, Tex., for U-Tote-M, Inc.

Robert E. Diaz, Asst. City Atty., Arlington, Tex., for Robert L. Parsons.

Appeal from the United States District Court for the Northern District of Texas.

Before RONEY, KRAVITCH and TATE, Circuit Judges.


Appellant Harrelson appeals from the dismissal of his complaint for failure to prosecute and an injunction preventing him from instituting any further action based on the facts which were alleged in the complaint, including any causes of action which could have been asserted as well as those which were asserted. We affirm.

Page 116

On December 14, 1978, an Order to Show Cause why Civil Action # 7-77-3 should not be dismissed for want of prosecution was entered, and a hearing on the order was set for January 5, 1979. On January 3, 1979, Harrelson filed a motion for continuance citing as reasons inclement weather and his health. Without a ruling on the plaintiff's motion, the hearing was held on January 5. Plaintiff did not appear although the district court's failure to rule on the motion for continuance did not relieve him of his duty to appear, Hepperle v. Johnston, 590 F.2d 609 (5th Cir. 1979). The district court dismissed the complaint.

A dismissal under Rule 41(b), Fed.R.Civ.P., for failure to prosecute acts as an adjudication on the merits, and thus should be used sparingly and only when less drastic alternatives have been explored. Hepperle v. Johnston, 590 F.2d 609 (5th Cir. 1979); Ramsay v. Bailey, 531 F.2d 706 (5th Cir. 1976), Cert. denied, 429 U.S. 1107, 97 S.Ct. 1139, 51 L.Ed.2d 559 (1977); Murrah v. Fire Insurance Exchange, 480 F.2d 613 (5th Cir. 1973). In this case the last pleading prior to the Show Cause Order was filed on March 7, 1977, 22 months before the dismissal. Dismissals for failure to...

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