IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-50772
USDC No. W-95-CV-187
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RODNEY LEE WOODS,
Plaintiff-Appellant,
versus
JACK M. GARNER, Warden; CHARLIE F.
STREETMAN, Assistant Warden; WILLIAM L.
NORTHROP; DEBORAH A. PARKER; JOHN STICE;
RAUL J. MATA; EVELYN COOK; T. M. WORTHINGTON;
MICHAEL W. MOORE,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
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December 13, 1995
Before KING, SMITH and BENAVIDES, Circuit Judges.
BY THE COURT:
Rodney Lee Woods seeks leave to proceed in forma pauperis
(IFP) on appeal. To proceed IFP on appeal, Woods must
demonstrate that he is a pauper and that he will present a
nonfrivolous issue on appeal. Carson v. Polley, 689 F.2d 562,
586 (5th Cir. 1982).
Woods argues that the district court abused its discretion
in dismissing his suit for failure to prosecute. Fed. R. Civ. P.
41(b). This court has established an exacting standard of review
when the Rule 41(b) dismissal is with prejudice or when a statute
No. 95-50772
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of limitations would bar reprosecution of a suit dismissed
without prejudice under Rule 41(b). Berry v. CIGNA/RSI-CIGNA,
975 F.2d 1188, 1191 (5th Cir. 1992). Because the statute of
limitations would bar reprosecution of Woods' suit, the district
court's dismissal operates as a dismissal with prejudice. The
district court abused its discretion in dismissing Woods'
complaint with prejudice.
In light of the district court's abuse of discretion, Woods'
motion for leave to proceed on appeal IFP is GRANTED. See
Jackson, 811 F.2d at 261. Because the suit was dismissed before
answers were required, and because further briefing is not
required, the district court's judgment is VACATED and the case
is REMANDED for further proceedings. See Clark v. Williams, 693
F.2d 381, 382 (5th Cir. 1982).