IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40164
Summary Calendar
SHERMAN DARNELL,
Plaintiff-Appellant,
versus
JAMES A. COLLINS, Director,
Texas Department of Criminal
Justice, Institutional Division;
WAYNE SCOTT; CALDWELL PREJEAN;
WILLIAM MCCRAY; TEXAS CORRECTIONAL
INDUSTRY PRIVATE PRISON, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE;
CALVIN LANGFORD; JANIE THOMAS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-96-CV-580
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December 23, 1997
Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Sherman Darnell, Texas state prisoner # 593265, argues that
the district court abused its discretion in dismissing his civil
rights complaint based on his failure to pay the filing fee or to
file timely an in forma pauperis application. We have reviewed
*
Pursuant to 5TH CIR. R. 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opinion should not be published and is not precedent except under the limited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 CIR. R. 47.5.4.
No. 97-40164
-2-
the record and the brief filed by Darnell and find that the
district court abused its discretion in dismissing Darnell’s
complaint pursuant to FED. R. CIV. P. 41(b). Although the court
dismissed the complaint without prejudice, it appears that
Darnell may be barred by the applicable limitations period from
filing a new complaint. Therefore, the dismissal is reviewed as
a dismissal with prejudice. See Berry v. CIGNA/RSI-CIGNA, 975
F.2d 1188, 1192 (5th Cir. 1992).
The record does not reflect that Darnell intentionally
delayed the proceeding or engaged in any contumacious conduct.
Rather, the record reflects that Darnell had attempted to cure
the noted deficiency prior to the entry of the order of
dismissal. The district court did not state that it had
considered whether a lesser sanction would have served the
interest of justice. The court abused its discretion in
effectively dismissing the complaint with prejudice. See id. at
1191-92 & n.6.
The order of dismissal is VACATED, and the case is REMANDED
for further proceedings. We express no view on the merits.