                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 30, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-30495
                         Summary Calendar


RENODE COLLINS,

                                     Plaintiff-Appellant,

versus

RICHARD L. STALDER, Secretary of Corrections; BURL CAIN,
Warden; LOUISIANA STATE PENITENTIARY; CURLY ALFRED,
Correctional Officer at Louisiana State Penitentiary; HEALTH
CARE PROVIDER, #71; B. JOHNSON; HEALTH CARE PROVIDER, #17;
HEALTH CARE PROVIDER, #66; JOHN DOE, Doctor,

                                     Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
              for the Middle District of Louisiana
                      USDC No. 3:06-CV-163
                      --------------------

Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

     Renode Collins, Louisiana prisoner # 313898, proceeding pro

se and in forma pauperis, appeals the district court’s dismissal

of his 42 U.S.C. § 1983 complaint.

     On March 15, 2006, the district court issued an order

indicating that Collins’s pleadings were deficient, that Collins

needed to amend his pleadings to correct the deficiencies, and

that failure to amend within 15 days would result in dismissal.

     *
       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this opinion should not be published and is not precedent except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. 06-30495
                                -2-

On April 13, 2006, the district court observed that Collins had

failed to amend his pleadings and dismissed the proceeding,

without prejudice, for failure of Collins to correct the

deficiencies.   Collins argues, inter alia, that he did not

receive the deficiency notice and the district court erred when

it dismissed his complaint.

     A district court may sua sponte dismiss an action for

failure to prosecute or to comply with any order.    FED. R. CIV.

P. 41(b); McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir.

1988).   The scope of the district court’s discretion is narrower

when the Rule 41(b) dismissal is with prejudice or when a statute

of limitations would bar re-prosecution of a suit dismissed under

Rule 41(b) without prejudice.   Berry v. CIGNA/RSI-CIGNA, 975 F.2d

1188, 1191 (5th Cir. 1992).   In Collins’s case, although the

district court dismissed Collins’s suit without prejudice, the

dismissal may have effectively been with prejudice due to the

one-year statute of limitations.   See Jacobsen v. Osborne, 133

F.3d 315, 319 (5th Cir. 1998); LA. CIV. CODE ANN. art. 3492.

     Where the limitations period “prevents or arguably may

present” further litigation, the standard of review should be the

same as is used when reviewing a dismissal with prejudice.

Boazman v. Economics Laboratory, Inc., 537 F.2d 210, 212-13 (5th

Cir. 1976).   This court will affirm dismissals with prejudice for

failure to prosecute only when there is a clear record of delay

or contumacious conduct by the plaintiff and the district court
                             No. 06-30495
                                  -3-

has expressly determined that lesser sanctions would not prompt

diligent prosecution, or the record shows that the district court

employed lesser sanctions that proved to be futile.     Berry, 975

F.2d at 1191.

     There is not a clear record of purposeful delay or

contumacious conduct by Collins.    The district court’s order that

Collins supplement the record was issued on March 17, 2006, and

the district court dismissed the proceeding on April 13, 2006.

There are no other orders of the district court in the record,

and therefore there were no other instances where Collins did not

comply with a court order.    See Berry, 975 F.2d at 1191 and n.5.

As Collins argues, an attachment to his brief indicates that

Collins may not have received the March 17, 2006, order.    Also,

the district court did not determine that lesser sanctions would

not prompt diligent prosecution, and the district court did not

employ lesser sanctions that proved to be futile.     See Berry, 975

F.2d at 1192 and n.7.   Finally, none of the usual aggravating

factors appear to be present.    See Sealed Appellant v. Sealed

Appellee, 452 F.3d 415, 418 (5th Cir. 2006).

     Accordingly, the district court’s dismissal of Collins’s

suit was an abuse of discretion.    The district court’s judgment

is VACATED and the case is REMANDED for further proceedings.
