Rule 41(b) Dismissal with Prejudice for Contumacious Pro Se Conduct Despite Unresolved Competency Concerns; Rule 17(c) Protections Not Triggered Absent Adjudicated Incompetence

I. Introduction

Boudy v. McComb School District (5th Cir. Feb. 24, 2026) arises from an employment discrimination and retaliation suit filed by Daphnie Newman Boudy, a former McComb School District employee, who alleged retaliation and severe mental-health harms after attempting to end a sexual relationship with administrator James Harvey. Over the course of the litigation, Boudy alternated between represented and pro se status and repeatedly asserted serious mental illness and indigency.

The appeal focused on three district-court actions: (1) a sua sponte order staying the case and directing Boudy to undergo a mental examination at her own expense; (2) dismissal of her case with prejudice for failing to comply with court directives and failing to appear at multiple hearings; and (3) an order requiring Boudy to pay the District’s attorneys’ fees for missed proceedings.

The Fifth Circuit affirmed the dismissal with prejudice, but vacated and remanded as to attorneys’ fees.

II. Summary of the Opinion

The Fifth Circuit applied abuse-of-discretion review to the dismissal sanction and concluded the record established “contumacious conduct”—i.e., stubborn resistance to court authority—based on repeated failures to appear and failures to properly communicate with the court, despite multiple warnings and opportunities to comply.

The court rejected four principal challenges to dismissal:

  • No contumacious record: The court found a clear record of contumacious conduct (even if delay arguments were not addressed).
  • Lesser sanctions not considered: The court held that repeated warnings functioned as lesser sanctions and were futile; other sanctions (like monetary fines) were likely ineffective given asserted indigency.
  • Rule 37 limits: The court held dismissal was justified by broader misconduct, not merely noncompliance with the mental-examination order.
  • Competency concerns / Rule 17(c): The court held Rule 17(c) procedures are required when a litigant is adjudicated incompetent; here, incompetence remained “in question” and the district court could implicitly find Boudy competent based on her demonstrated ability to litigate and the court’s observations.

The court affirmed dismissal with prejudice but vacated and remanded the fee award.

III. Analysis

A. Precedents Cited

1. Appellate jurisdiction / premature notice of appeal

  • Parrish v. United States (2025) and FirsTier Mortg. Co. v. Invs. Mortg. Ins. Co. (1991): Used to hold Boudy’s premature notice of appeal “relates forward” to the final judgment, preserving appellate jurisdiction despite a technical defect.

2. Standard of review for sanctions and factual findings

  • Brown v. Oil States Skagit Smatco (2011), Topalian v. Ehrman (1993), and Positive Software Sols., Inc. v. New Century Mortg. Corp. (2010): Establish the abuse-of-discretion review for sanctions decisions and clear-error review for underlying factual determinations—framing the panel’s deferential posture toward the district court’s assessment of Boudy’s conduct.
  • Bryson v. United States (2008): Specifically anchors abuse-of-discretion review for Rule 41(b) dismissals and provides the two-part conjunctive test for dismissal with prejudice.

3. Rule 41(b) dismissal framework and “contumacious conduct”

  • McCullough v. Lynaugh (1988): Confirms the district court’s authority to dismiss for failure to comply with court orders and the inherent power to dismiss sua sponte.
  • Callip v. Harris Cnty. Child Welfare Dep't (1985) and Bryson v. United States (2008): Provide the core two-part test for dismissal with prejudice: (i) clear record of delay or contumacious conduct, and (ii) lesser sanctions would not serve the best interests of justice.
  • Coleman v. Sweetin (2014) and McNeal v. Papasan (1988): Clarify that the test is conjunctive, but the first element can be satisfied by either delay or contumacious conduct.
  • Millan v. USAA Gen. Indem. Co. (2008): Supplies the definitional hook—contumacy is “stubborn resistance to authority,” not mere negligence—central to affirming dismissal based on Boudy’s repeated nonappearance and selective engagement.
  • In re Deepwater Horizon (2021): Supports that aggravating factors often appear in affirmed dismissals but are not strictly required; used to prevent reversal merely because not all aggravators are present.
  • Griggs v. S.G.E. Mgmt., L.L.C. (2018) and Atl. Sounding Co. v. Fendlason (2014): Reinforce that repeated failure to appear and disobedience can justify dismissal with prejudice.
  • Berry v. CIGNA/RSI-CIGNA (1992): Noted for the caution that dismissal with prejudice is often abusive where only a few orders are violated, but also recognized that futility of lesser sanctions supports affirmance—used here to distinguish Boudy’s pattern.
  • Barnes v. Tumlinson (2015): Supports the proposition that purposeful refusal to comply after warnings evidences contumacy and that warnings may suffice as lesser sanctions.

4. “Lesser sanctions” requirement and adequacy of warnings

  • Webb v. Morella (2012) and Callip v. Harris Cnty. Child Welfare Dep't (1985): Emphasize the usual need to consider lesser sanctions and to show they were tried or would be futile.
  • Atl. Sounding Co. v. Fendlason (2014) and Imperial ED Promotions, L.L.C. v. Pacquiao (2013): Hold that advance warnings can mitigate the need for an explicit on-the-record lesser-sanctions analysis and that a court may implicitly reject alternatives when dismissal is the only effective option.
  • Rogers v. Kroger Co. (1982): Provides a list of “lesser sanctions” and supports the idea that when limitations would bar refiling, “without prejudice” may be illusory.
  • Nottingham v. Warden, Bill Clements Unit (2016) and Coleman v. Sweetin (2014): Explain that a nominal dismissal without prejudice is treated like with-prejudice dismissal when limitations likely bar refiling.
  • Yanez v. Dish Network, L.L.C. (2025): Serves as a counterpoint, cautioning that courts should recognize when “without prejudice” functionally means “with prejudice,” and should indicate awareness; the panel distinguished the situation by relying on repeated warnings and futility.

5. Monetary sanctions and indigency

  • F.D.I.C. v. Conner (1994): Cited for sanctions’ deterrent purpose.
  • Bailey v. N.E. Indep. Sch. Dist. (1993) and Sampson v. Giles (2011): Support that fines may be futile or inappropriate where a party is indigent or proceeding in forma pauperis—used to justify skepticism that monetary sanctions would change Boudy’s conduct.

6. Rule 37 / compliance with discovery and examination orders

  • Rousseau v. 3 Eagles Aviation, Inc. (2005): Used for the proposition that even erroneous orders must be obeyed until reversed through proper channels.
  • Acosta v. Tenneco Oil Co. (1990): Notes (in a footnote) that Rule 37 sanctions are available only for discovery orders “permissible” under Rules 30–35; the panel acknowledged tension but avoided resolving it because dismissal rested on broader misconduct.

7. Rule 17(c), incompetency, and guardians ad litem

  • Roberts v. Ohio Casualty Insurance Co. (1958): Establishes that Rule 17(c) does not make appointing a guardian ad litem mandatory in all circumstances.
  • Adelman ex rel. Adelman v. Graves (1984): Provides that the “general approach” applies when the court determines a party is inadequately represented due to minority/incompetency, and that the approach is “equally valid” for incompetency—but, as the panel emphasized, this is typically applied when the party is adjudicated incompetent.
  • Poree v. Morgante (2015): Cited as an example of the adjudicated-incompetence context.

8. Dismissal where competency is questioned

  • Bodnar v. Bodnar (1971): Fifth Circuit precedent approving dismissal (without prejudice) after refusal to submit to a competency-related mental examination.
  • Krain v. Smallwood (1989): Ninth Circuit authority stating that when a “substantial question” exists about an unrepresented party’s competence, dismissal with prejudice is improper; the Fifth Circuit declined to adopt that rule here, citing ambiguity about competence and the practical limitations bar.

9. Competency vs. Rule 35 “in controversy” standard

  • Magallon v. Livingston (2006) and Lindly v. Lindly (1908): Used to illustrate that legal capacity/competency standards can differ from a Rule 35 standard.
  • Schlagenhauf v. Holder (1964): General guidance on when Rule 35 examinations may be ordered, reinforcing that Rule 35 is a discovery mechanism and not necessarily a competency determination.

B. Legal Reasoning

1. Why the panel affirmed dismissal with prejudice

The panel’s reasoning is structured around the Fifth Circuit’s established Rule 41(b) framework:

  1. Contumacious conduct was shown. Relying on Millan v. USAA Gen. Indem. Co. and McNeal v. Papasan, the panel distinguished “stubborn resistance to authority” from mere negligence. It treated Boudy’s repeated failures to attend proceedings, failures to timely respond despite repeated outreach, and refusal to appear after the court denied her preferred Zoom format as a sustained, willful pattern.
  2. Lesser sanctions were futile. The panel treated repeated warnings as lesser sanctions and concluded they did not change behavior (consistent with Callip v. Harris Cnty. Child Welfare Dep't and Barnes v. Tumlinson). It also reasoned that monetary sanctions were unlikely to deter given her asserted indigency (citing Bailey v. N.E. Indep. Sch. Dist. and Sampson v. Giles).

2. Why Rule 37 did not save the case

The panel avoided deciding whether the mental-examination order was “permissible” for Rule 37 purposes (acknowledging Acosta v. Tenneco Oil Co.) because dismissal was supported by additional misconduct independent of the exam order. It rejected the notion that an allegedly improper order “contaminates” subsequent obligations to comply with otherwise valid court directives.

3. Why competency concerns did not bar dismissal with prejudice

The panel treated Rule 17(c)’s protective mechanisms as triggered by adjudicated incompetence, not merely allegations or uncertainty, and found no clear error in the district court’s apparent view that Boudy understood proceedings and knowingly disregarded orders. The panel also declined to adopt the Ninth Circuit’s categorical rule from Krain v. Smallwood, emphasizing (i) uncertainty over whether competence was in “substantial question,” (ii) ambiguity about whether the district court still credited incompetency concerns by the time of dismissal, and (iii) that dismissal without prejudice would be effectively with prejudice due to limitations.

C. Impact

  • Rule 41(b) remains a robust tool against pro se noncompliance. The decision underscores that repeated nonappearance and selective engagement can meet the Fifth Circuit’s “contumacious conduct” standard even when the litigant asserts disability and serious mental illness—particularly where the record shows the litigant can draft filings and navigate litigation tasks.
  • Warnings can function as “lesser sanctions.” By treating repeated warnings as sufficient attempts short of dismissal, the opinion encourages district courts to build a record of notice and consequences, and signals that explicit step-by-step lesser-sanctions findings may not be required when warnings have proven futile.
  • Rule 17(c) arguments face a threshold problem absent adjudication. Litigants asserting incompetency will likely need more than medical diagnoses and self-reporting to force Rule 17(c) measures; the opinion suggests district courts retain discretion to proceed (and to sanction) unless incompetence is established in a way that triggers Rule 17(c)’s protection duty.
  • Unresolved tension on Rule 37 “permissible order” language remains. The panel flagged but did not resolve the interplay between Acosta v. Tenneco Oil Co. and the general obligation to obey orders (as in Rousseau v. 3 Eagles Aviation, Inc.). Future cases may squarely present whether an improper Rule 35 order can support Rule 37 dismissal remedies.
  • Fee sanctions require separate scrutiny. The vacatur and remand of attorneys’ fees indicates that even where dismissal is justified, fee-shifting as a sanction must satisfy independent standards and procedural requirements.

IV. Complex Concepts Simplified

  • “Dismissal with prejudice” vs. “without prejudice”: With prejudice means the case is over and cannot be refiled. Without prejudice allows refiling—unless the statute of limitations has expired, in which case “without prejudice” may effectively end the case anyway.
  • Rule 41(b): A rule allowing dismissal when a plaintiff fails to prosecute the case or disobeys court orders (including failure to appear at hearings).
  • “Contumacious conduct”: More than carelessness; it means willful defiance—persistent refusal to comply with a court’s authority.
  • “Lesser sanctions”: Steps short of dismissal—warnings, costs, fines, conditional dismissal, or dismissal without prejudice. The Fifth Circuit often requires courts to consider these before imposing dismissal with prejudice.
  • Rule 35 mental examination: A discovery tool allowing a court to order an exam when mental condition is genuinely at issue and there is “good cause.” It is not automatically a legal finding that someone is incompetent.
  • Rule 17(c): A protective rule for minors or incompetent persons who are unrepresented. The court must appoint a guardian ad litem or issue another protective order when incompetence is established such that protection is required.
  • Rule 37 sanctions and contempt limits: Courts may sanction discovery noncompliance, including dismissing a case, but Rule 37 restricts treating refusal to submit to an exam as “contempt.” This case did not turn on that restriction because dismissal rested on broader conduct.

V. Conclusion

Boudy v. McComb School District reinforces that, in the Fifth Circuit, dismissal with prejudice under Rule 41(b) is sustainable where a plaintiff’s conduct reflects willful defiance—especially repeated failures to appear and failure to engage with court directives after warnings—even when the plaintiff is pro se and asserts serious mental illness. The court further signaled that Rule 17(c) protections are not automatically triggered by allegations of incompetence absent an adjudication or sufficiently established incapacity, and it declined to adopt the Ninth Circuit’s categorical bar on with-prejudice dismissal when competency is in question. At the same time, the vacatur and remand of attorneys’ fees underscores that fee awards as sanctions require careful, independent justification.