Paul Louis Harrelson, Plaintiff-Appellant, v. United States of America Et Al., Defendants-Appellees. No. 79-1234 Summary Calendar. [Fn*], 613 F.2d 114 (5th Cir. 1980)

Text

---

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.

PER CURIAM:

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.

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 prosecute are reviewable only for abuse of discretion. Graves v. Kaiser Aluminum & Chemical Co., 528 F.2d 1360 (5th Cir. 1976). In light of the significant inactivity of the plaintiff, we cannot say the district court abused its discretion in dismissing the complaint.

In addition to dismissing the complaint for failure to prosecute, the district court enjoined any future litigation on any cause of action arising from the fact situation at issue in this case. Such orders are generally unnecessary, as res judicata and collateral estoppel are usually more than adequate to protect defendants against repetitious litigation. A litigious plaintiff pressing a frivolous claim, though rarely succeeding on the merits, can be extremely costly to the defendant and can waste an inordinate amount of court time. In this case, the plaintiff has forced various defendants in and out of court for almost five years and has had a full opportunity to present and litigate his claims. (See attached Appendix for a chronological history of this litigation.)

The district court has the power under 28 U.S.C. § 1651(a) to enjoin litigants who are abusing the court system by harassing their opponents. Ruderer v. United States, 462 F.2d 897 (8th Cir.), appeal dismissed, 409 U.S. 1031 , 93 S.Ct. 540, 34 L.Ed.2d 482 (1972); Hill v. Estelle, 423 F.Supp. 690 (S.D. Tex.), aff'd without opinion, 543 F.2d 754 (5th Cir. 1976). Considering the history of this case, we cannot say the entry of such an injunction was an abuse of discretion.

AFFIRMED.

[fn*] Fed.R.App.P. 34(a); 5th Cir. R. 18.

---