IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-30404
Summary Calendar
DAVID BOUDREAUX, SR.,
Plaintiff-Appellant,
versus
R.L. PEABODY; R. RITCHIE; R. DREETS;
D. RABALAIS; G. TEMPLETON,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 95-CV-797-A
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June 10, 1997
Before JONES, DeMOSS and PARKER, Circuit Judges.
PER CURIAM:*
David Boudreaux, Sr., Louisiana prisoner #72912, moves this
court for leave to appeal in forma pauperis (IFP) under the
Prison Litigation Reform Act of 1995 (PLRA) in his appeal from
the district court’s dismissal of his civil rights complaint for
failure to comply with an order of the court to pay a partial
*
Pursuant to Local 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
No. 96-30404
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filing fee. See Fed. R. Civ. P. 41(b). Boudreaux’s motion for
leave to proceed IFP is GRANTED.
The PLRA requires a prisoner appealing IFP in a civil action
to pay the full amount of the filing fee, $105. 28 U.S.C
§ 1915(b)(1). As Boudreaux does not have funds for immediate
payment of this fee, he is assessed an initial partial filing fee
of $5.59 pursuant to § 1915(b)(1). Following payment of the
partial filing fee, funds shall be deducted from Boudreaux’s
prisoner account until the full filing fee is paid.
§ 1915(b)(2).
IT IS ORDERED that Boudreaux authorize the appropriate
prison authorities to withdraw the initial partial filing fee
from his trust fund account in accordance with the procedures
required by the prison and to forward payment of the initial
partial filing fee to the Clerk of the U.S. District Court for
the Middle District of Louisiana. IT IS FURTHER ORDERED that the
agency having custody of Boudreaux’s inmate account shall forward
payments from his account to the Clerk of the District Court for
the Middle District of Louisiana each time the amount in the
account exceeds $10 until the filing fees are paid in accordance
with 28 U.S.C. § 1915(b)(2).
Boudreaux argues that the district court abused its
discretion in ordering him to pay a partial filing fee of $5.50
and in dismissing his complaint for failure to comply with the
court’s order to pay the filing fee. Boudreaux contends that he
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was unable to comply within the twenty-day period specified in
the order because the prison would not release funds in his
account without an original cost notice from the district court.
He argues that he filed a motion to obtain the original cost
notice and a motion for an extension of time to comply with the
order but that the court did not rule on his motions.
Boudreaux has not demonstrated that the district court
abused its discretion in ordering that he pay a partial filing
fee. Prows v. Kastner, 842 F.2d 138, 140 (5th Cir.), cert.
denied, 488 U.S. 941 (1988).
Although the district court's order of dismissal was without
prejudice, because the applicable one-year prescriptive period
has lapsed, the dismissal effectively was a dismissal with
prejudice. See Elzy v. Roberson, 868 F.2d 793, 794 (5th Cir.
1989); La. Civ. Code Ann. art. 3492 (West 1994). A Rule 41(b)
dismissal with prejudice will be affirmed if the "case discloses
both 1) a clear record of delay or contumacious conduct by the
plaintiff, and 2) that a lesser sanction would not better serve
the best interests of justice." McNeal v. Papasan, 842 F.2d 787,
790 (5th Cir. 1988). There is not a clear record of delay or
contumacious conduct in this case. Because the record does not
show that the district court either employed lesser sanctions
that proved futile or made express findings concerning the
inadequacy of lesser sanctions, see McNeal, 842 F. 2d at 793, the
district court abused its discretion in dismissing under Rule
No. 96-30404
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41(b). See Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1192 (5th
Cir. 1992). Accordingly, the dismissal is VACATED and the case
is REMANDED for further proceedings.
IFP GRANTED; VACATED AND REMANDED.