          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                               December 17, 2008
                                No. 08-30431
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

SHEDRICK BRUMFIELD

                                            Plaintiff-Appellant

v.

SHIRLEY COODY, UNKNOWN BEOKER, Lieutenant; DAVID HONEYCUTT,
Colonel; DAVID DAIGRENPONT, Sergeant; RICHARD STALDER; LINDA
RAMSEY

                                            Defendants-Appellees


                 Appeal from the United States District Court
                     for the Middle District of Louisiana
                            USDC No. 3:07-CV-64


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Plaintiff-Appellant Shedrick Brumfield, Louisiana prisoner # 395469,
moves for leave to proceed in forma pauperis (IFP) on appeal from the district
court’s denial of a FED. R. CIV. P. 60(b) motion challenging the dismissal of
Brumfield’s 42 U.S.C. § 1983 claims against defendants Coody, Beoker,
Honeycutt, and Daigrenpont for failure to perfect service of process. The district


      *
      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should not be published and is not precedent except under the limited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. 08-30431

court concluded that Brumfield’s claims against these defendants were not
frivolous, but it granted their motion to dismiss for failure to perfect service after
the court did not receive a response to its order that Brumfield had thirty days
in which to perfect service.
      By moving for leave to proceed IFP, Brumfield is challenging the district
court’s certification that his appeal was not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); FED. R. APP. P.
24(a)(3). Brumfield contends that he attempted to comply with the court’s
instruction to perfect service, but that the clerk of court did not respond to his
correspondence. For the reasons detailed below, we VACATE the district court’s
certification that the appeal is not taken in good faith.
      Although FED. R. CIV. P. 4(m) directs that a dismissal for failure to perfect
service should be without prejudice, see Rule 4(m), the judgment of dismissal in
this case did not specify that the complaint was dismissed without prejudice. A
dismissal that is silent as to prejudice sounds as a dismissal with prejudice. See
Nationwide Mut. Ins. Co. v. Unauthorized Practice of Law Comm., 283 F.3d 650,
656 n.26 (5th Cir. 2002). Moreover, our review of the record leads us to conclude
that Brumfield may be entitled to Rule 60(b) relief because his failure to perfect
service was based on excusable neglect. See Rule 4(m); see also Henderson v.
United States, 517 U.S. 654, 661-62 (1996) (holding that the 120-day provision
in Rule 4 is not jurisdictional and may be extended at the discretion of the
district court). The record shows that Brumfield complied with “the core
function of service [by supplying] notice of the pendency of [the] legal action, in
a manner and at a time that afford[ed] the defendant[s] a fair opportunity to
answer the complaint and present defenses and objections.” See Henderson, 517
U.S. at 671-72.
      Because the district court determined that the appeal was not taken in
good faith, it did not address whether Brumfield is financially eligible to appeal
IFP. We note that Brumfield received $10000 in settlement of a prior civil rights

                                          2
                                 No. 08-30431

lawsuit in December 2006. See Brumfield v. Cain, No. 3:03-cv-486 (M.D. La.
Dec. 19, 2006). Brumfield states that the majority of this award was used to pay
his criminal attorney. Although Brumfield’s current affidavit of poverty provides
adequate grounds to support a grant of IFP, a court may require additional proof
of poverty as part of its inherent authority under § 1915(d). Prows v. Kastner,
842 F.2d 138, 140 (5th Cir. 1988). Accordingly, the motion to appeal IFP is
HELD IN ABEYANCE and the case is REMANDED to the district court for
clarification of Brumfield’s financial status. We express no intimation regarding
Brumfield’s financial eligibility to appeal IFP.




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