UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 01-10191
Summary Calendar
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ARDELL NELSON,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE; TEXAS
DEPARTMENT OF CRIMINAL JUSTICE - INSTITUTIONAL
DIVISION OFFICIALS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
(2:00-CV-231)
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May 18, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Ardell Nelson (Texas prisoner #482188) appeals the dismissal
of his civil rights action, without prejudice, for failure to
prosecute. The dismissal order stated that Nelson had failed to
comply with a deficiency notice, which instructed him to sign and
return his complaint prior to a 30-day deadline expiring in early
January 2001.
*
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this opinion should not be published and is not precedent except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.
The district court’s docket sheet, however, contains the
following 12 December 2000 entry: “Received signed complaint from
plaintiff Nelson in response to deficiency order dated 12/7/00.
Copy forwarded to chambers”. Moreover, the complaint in the record
on appeal is signed by Nelson and dated 12 December 2000. Because
the record indicates Nelson timely complied with the deficiency
notice, we conclude that the district court abused its discretion
in dismissing the complaint. See McCullough v. Lynaugh, 835 F.2d
1126, 1127 (5th Cir. 1988). Accordingly, we VACATE the final
judgment and REMAND the case to the district court for further
proceedings consistent with this opinion.
VACATED and REMANDED
2