                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                        F I L E D
                      UNITED STATES COURT OF APPEALS
                           For the Fifth Circuit                         June 13, 2006

                                                                     Charles R. Fulbruge III
                                                                             Clerk
                               No. 05-20810
                             Summary Calendar




                                SUE A. COLE,

                                                          Plaintiff-Appellant,

                                      VERSUS


         JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,


                                                          Defendant-Appellee.



             APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE SOUTHERN DISTRICT OF TEXAS
                          USDC No. 04-CV-4720



Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant appeals the dismissal of her case for want

of prosecution and the later denial of her Motion to Vacate the

Order of Dismissal.        For the following reasons, we vacate the

district court order dismissing plaintiff’s case for want of

prosecution,    and    remand   the    case    to   the   district    court    for


     *
     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this opinion should not be published and is not precedent except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.
reinstatement on the docket and for further proceedings.

                                   I.

     Plaintiff, Sue Cole, filed an application for Disability

Insurance Benefits and Supplement Security Income.                 After the

denial of her claims initially and on reconsideration, she received

an administrative hearing.      The administrative law judge (“ALJ”)

found that Cole was not disabled.       Cole requested relief from the

Appeals Council, which was denied.        She then filed a complaint in

federal district court seeking review of the Commissioner’s final

decision pursuant to 42 U.S.C. § 405(g).         The district court issued

an   order   remanding   Cole’s    case    to     the    ALJ    for   further

administrative proceedings, concluding that the ALJ’s decision was

not supported by the evidence.

     On remand, the ALJ found Cole not disabled, and again, the

Appeals Council denied Cole’s request for review of the ALJ’s

decision.    On December 16, 2004, Cole filed a second complaint in

federal   district   court   seeking    review    of    the    Commissioner’s

decision.    On July 3, 2005, the district court entered an Order of

Dismissal for Want of Prosecution because Cole failed to serve

summons on the defendant within 120 days as required by Federal

Rule of Civil Procedure 4(m).     The record does not reflect that the

district court provided notice to Cole, as required by Rule 4(m),

before it dismissed the suit.      Cole filed a Motion to Vacate the

Order of Dismissal and for Extension of Time for Service which the

district court denied. The prescriptive period has expired and the

                                    2
dismissal effectively ends this action.2

                                   II.

      Under Rule 4(m)3 of the Federal Rules of Civil Procedure, if

service of summons and complaint is not made upon a defendant

within 120 days after a complaint is filed, after giving notice

to   plaintiff,   the   court   shall    dismiss   the   action     without

prejudice or direct that service be effected within a specified

time, provided that if the plaintiff shows good cause for the

failure, the court shall extend the time for service for an

appropriate period. Fed. R. Civ. P. 4(m)(1993).                 A dismissal

under Rule 4(m) for failure to obtain service of process is

reviewed for an abuse of discretion.         Fournier v. Textron Inc.,

776 F.2d 532, 534 (5th Cir. 1985).

      Appellant   argues,   and   appellee   agrees,     that    where   the

applicable statute of limitations bars future litigation, the



      2
        See note 3 infra.
      3
        Federal Rule of Civil Procedure 4(m) provides in relevant
part:

      If service of the summons and complaint is not made
      upon a defendant within 120 days after the filing of
      the complaint, the court, upon motion or on its own
      initiative after notice to the plaintiff, shall dismiss
      the action without prejudice as to that defendant or
      direct that service be effected within a specified
      time; provided that if the plaintiff shows good cause
      for the failure, the court shall extend the time for
      service for an appropriate period.
      Fed.R.Civ.P. 4(m)(1993).


                                   3
standard of review for the district court’s dismissal should be

the same as is used when reviewing a dismissal with prejudice.

See Boazman v. Economics Laboratory, Inc., 537 F.2d 210 (5th Cir.

1976) (cited in Gray v. Fidelity Acceptance Corp., 634 F.2d 223

(5th       Cir.   1981))(explaining    that    “where...the       statute     of

limitations       prevents   or   arguably    may   prevent   a   party     from

refiling his case after it has been dismissed, we fail to see how

a dismissal without prejudice is any less severe than a dismissal

with prejudice.”         Boazman, 537 F.3d at 213).           Cole and the

Commissioner agree that the dismissal of her suit has the effect

of a dismissal with prejudice4 and thus should be reviewed under

a heightened standard of review:             dismissal with prejudice is

warranted only where a “clear record of delay or contumacious

conduct by the plaintiff” exists and a “lesser sanction would not

better serve the interests of justice.”             Gray, 634 F.2d at 227.

       The government did not oppose Cole’s motion in the district

court to reinstate this case to the docket and in this appeal

does not oppose reinstatement in light of:              (1) the failure of

the district court to give Cole notice of dismissal and (2) the

district court’s failure to find a clear record of contumacious


       4
     Cole’s cause of action arises under 42 U.S.C. § 405(g),
which mandates that a plaintiff commence a civil action in
federal district court within 60 days following the mailing of
the Appeals Council’s denial of request for review. 42 U.S.C. §
405(g). Because the district court dismissed Cole’s suit after
the expiration of the 60-day time period, Cole is time-barred
from refiling her suit.

                                      4
conduct by plaintiff.

     The record does not support the dismissal under Rule 4(m).

It reveals that the district court did not give notice of its

intent to dismiss for failure to prosecute and the court made no

finding of a clear record of delay or contumacious conduct by

plaintiff, which the record would not support.     We therefore

vacate the order of dismissal and remand this case to the

district court with directions to reinstate this case on the

docket.

     VACATED and REMANDED.




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