                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 11-3464
                                   ___________

Dexter D. Anderson,                     *
                                        *
              Appellant,                *
                                        * Appeal from the United States
       v.                               * District Court for the
                                        * District of Minnesota.
United States of America; Warden        *
B. R. Jett; S. Young, Associate         * [UNPUBLISHED]
Warden; C. Nickrenz, Associate          *
Warden; Dr. M. Nelson, Clinical         *
Director; L. Krieg, Doctor; J. Schultz, *
CDR-Rehab Services; J. Feda,            *
DPT-OCS-Rehab Services; and Federal *
Medical Center,                         *
                                        *
              Appellees.                *
                                   ___________

                             Submitted: February 22, 2012
                                Filed: March 28, 2012
                                 ___________

Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
                           ___________

PER CURIAM.

       Federal inmate Derek Anderson appeals the district court’s preservice dismissal
of his combined Federal Tort Claims Act (FTCA) and civil rights complaint. We
reverse and remand for further proceedings.
       After Anderson filed his complaint, the magistrate judge issued an order on
June 15 directing Anderson to submit, within 30 days, a completed federal marshal
service form (USM-285) for each defendant. The magistrate judge warned that failure
to do so would result in dismissal of the complaint for failure to prosecute. On July
28, the magistrate judge recommended dismissing the complaint under Fed. R. Civ.
P 41(b), because Anderson had failed to submit the USM-285 forms. The district
court adopted the magistrate judge’s report over Anderson’s timely objections, and
dismissed the complaint without prejudice for failure to comply with a court order and
for failure to prosecute.

       We conclude that the district court abused its discretion in dismissing the
complaint. See Smith v. Gold Dust Casino, 526 F.3d 402, 404-05 (8th Cir. 2008)
(standard of review; court uses balancing test that focuses on degree of egregious
conduct prompting dismissal, and to lesser extent on adverse impact of conduct on
defendant and administration of justice; sanction must be proportionate to litigant’s
transgression). Anderson requested a docket sheet in mid-July to check the status of
the case, and in a letter dated July 28, he notified the court that he had mailed the
service forms in June. The docket shows that the July 28 letter was received by the
district court before it adopted the magistrate judge’s report; and the court also had
before it Anderson’s objections to the report, in which he asserted that he had mailed
the forms on June 20, indicated that he might have erred by abbreviating the case
number, and sought more time to locate the forms or to resubmit them. We cannot
say, based on this record, that Anderson intentionally disobeyed the June 15 court
order. See Holly v. Anderson, 467 F.3d 1120, 1121 (8th Cir. 2006) (per curiam)
(finding district court abused discretion by dismissing case without prejudice where
record did not show plaintiff deliberately failed to comply with court order).

       We also find no evidence that defendants will be adversely affected by the delay
in service resulting from these events, or that the administration of justice would be
adversely affected. Although generally a without-prejudice dismissal mitigates against

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finding an abuse of discretion, see Edgington v. Mo. Dep’t of Corr., 52 F.3d 777, 780
(8th Cir. 1995), abrogated on other grounds, Doe v. Cassel, 403 F.3d 986, 988-89 (8th
Cir. 2005) (per curiam), Anderson may now be time-barred from refiling his FTCA
claim. In these circumstances, the balance favors reversal and remand.

       Accordingly, we reverse and remand for further proceedings consistent with
this opinion.
                      ______________________________




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