Grayer v. Vannoy, et al

United States Court of Appeals
for the Fifth Circuit

No. 19-30739

Albert A. Grayer,

Plaintiff—Appellant,

versus

Darrel Vannoy, Warden, Louisiana State Penitentiary;
Daniel E. Crook, Doctor, Louisiana State Prison, Individually
and in their Official Capacity; Bill Lacoste, EMT, Louisiana
State Prison, Individually and in their Official Capacity; Logan
Darbonne, EMT, Louisiana State Prison, Individually and in
their Official Capacity; M. Groom, Individually and in their Official
Capacity; David Voorhies, Individually and in their Official Capacity;
Howard Brown, Individually and in their Official Capacity; Damon
Turner, Individually and in their Official Capacity; Johnny Howard,
Individually and in their Official Capacity; Edward Russ, Individually
and in their Official Capacity,

Defendants—Appellees.

Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:19-CV-199

Before Willett, Ho, and Duncan, Circuit Judges.
United States Court of Appeals
Fifth Circuit
FILED
September 23, 2020

Lyle W. Cayce
Clerk
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No. 19-30739
2
Per Curiam:*
Albert A. Grayer, Louisiana prisoner # 389690, moves this court for
leave to proceed in forma pauperis (IFP) on appeal. The district court
dismissed Grayer’s 42 U.S.C. § 1983 complaint based on his failure to pay
the initial partial filing fee and his failure to provide the proper
documentation in response to a show cause order to establish his inability to
pay the fee. The court then denied IFP status on appeal after determining
that the appeal was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197,
202 (5th Cir. 1997). Before this court, Grayer contends that the district court
abused its discretion by dismissing his complaint because he lacked the funds
to pay the filing fee and because under 28 U.S.C. § 1915(b)(4) his complaint
could not be dismissed based on his financial status.
The district court’s dismissal without prejudice of Grayer’s complaint
for failure to pay the initial partial filing fee operates as a dismissal with
prejudice because the limitations period has expired. See Long v. Simmons,
77 F.3d 878, 880 (5th Cir. 1996). Accordingly, dismissal “is appropriate only
if the failure to comply with the court order was the result of purposeful delay
or contumaciousness and the record reflects that the district court employed
lesser sanctions before dismissing the action.” Id. A review of the pleadings
submitted to this court reflects that although Grayer did not submit the
proper documents showing his prison account balances as required by the
magistrate judge in the show cause order, he provided the information given
to him by prison officials. Thus, the failure to comply does not appear to be
“caused by intentional conduct.” Berry v. CIGNA/RSI-CIGNA, 975 F.2d
1188, 1191 (5th Cir. 1992) (internal quotation marks and citation omitted).
Additionally, the IFP motion submitted in conjunction with Grayer’s notice
of appeal supports his contention that he in fact did not have funds in his

*
Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4.
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No. 19-30739
3
prison account to pay the initial partial filing fee. See § 1915(b)(4) (stating
that a prisoner may not be prohibited from bringing a civil action based on his
inability to pay an initial partial filing fee).
Under the circumstances, the district court’s dismissal of Grayer’s
cause of action for failure to comply with court orders constitutes an abuse of
discretion. See Long, 77 F.3d at 880. As a result, Grayer’s motion for leave
to proceed IFP on appeal is GRANTED, the district court’s judgment
dismissing his § 1983 complaint is VACATED, and the case is
REMANDED to the district court for further proceedings consistent with
this opinion. This opinion does not bar the district court from seeking further
information about Grayer’s financial status if the initial partial filing fee still
is not paid. Grayer’s motion for appointment of counsel is DENIED.
Case: 19-30739 Document: 00515575836 Page: 3 Date Filed: 09/23/2020