United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 9, 2004
Charles R. Fulbruge III
Clerk
No. 03-41717
Summary Calendar
JAMES ALLEN BUCHANAN,
Plaintiff-Appellant,
versus
TOM MCCOOL, Sheriff Harrison County Texas; UP HAIN, Lieutenant
Harrison County Sheriff Office; UP DIXON, Jail Administrator; UP
SAVASTANO, Sergeant Harrison County Jail; SHARON WOODS, Nurse,
Harrison County Jail,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 2:03-CV-110
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Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
James Allen Buchanan, Texas prisoner # 648694, appeals the
district court’s dismissal of his civil rights complaint for
failure to comply with the court’s order to pay a partial filing
fee. Although the district court dismissed Buchanan’s suit
without prejudice, he is effectively barred from refiling by the
two-year statute of limitations. See Burrell v. Newsome, 883
F.2d 416, 418 (5th Cir. 1989).
*
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this opinion should not be published and is not precedent except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. 03-41717
-2-
The record does not show that Buchanan’s failure was the
result of contumaciousness or an attempt to delay the
proceedings. See McNeal v. Papsan, 842 F.2d 787, 790-92 (5th
Cir. 1988). The record also does not show that the court
considered lesser sanctions before dismissing Buchanan’s lawsuit.
See Long v. Simmons, 77 F.3d 878, 880 (5th Cir. 1996).
The judgment of the district court dismissing Buchanan’s
complaint is VACATED, and the case is REMANDED for further
proceedings. Buchanan is cautioned that this opinion does not
excuse him from compliance with the orders issued by the district
court if the court elects to reinstate those orders upon remand.
Buchanan is further cautioned that a failure to comply with the
district court’s orders in the future may result in dismissal of
his lawsuit.
VACATED AND REMANDED.