United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 30, 2004
Charles R. Fulbruge III
Clerk
No. 04-40297
Summary Calendar
CHARLES CLAY WARNER, JR.,
Plaintiff-Appellant,
versus
ZELDA G. GLASS, Individual Capacity; DIRK GRAY,
Individual Capacity; FRANK WARNER, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE - INSTITUTIONAL DIVISION COMPANY
DEPARTMENTS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:03-CV-15
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Charles Clay Warner, Jr., Texas state prisoner #502362,
appeals the district court’s dismissal without prejudice of his
42 U.S.C. § 1983 complaint for failure to pay the partial filing
fee assessed by the magistrate judge. Warner argues that the
district court abused its discretion in dismissing the complaint
because the prison custodian of his trust account failed to
perform its obligation to make the payment. He further argues
*
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this opinion should not be published and is not precedent except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. 04-40297
-2-
that the district court did not give him an adequate opportunity
to comply with the requirement.
Although the district court dismissed Warner’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).
The record does not show that Warner’s failure was the
result of contumacious behavior 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 Warner’s lawsuit.
See Long v. Simmons, 77 F.3d 878, 880 (5th Cir. 1996).
The judgment of the district court dismissing Warner’s
complaint is VACATED, and the case is REMANDED for further
proceedings. Warner 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.
Warner 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.