     Case: 13-30989      Document: 00512669762         Page: 1    Date Filed: 06/19/2014




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

                                    No. 13-30989                                  FILED
                                  Summary Calendar                            June 19, 2014
                                                                             Lyle W. Cayce
                                                                                  Clerk
LEE LUCAS,

                                                 Plaintiff-Appellant
v.

N. BURL CAIN, individually and in their official capacity; TIM DELANEY,
individually and in their official capacity; DARRELL VANNOY, individually
and in their official capacity; BOBBY ACHORD, individually and in their
official capacity; BILLY CANNON, individually and in their official capacity;
BARRETT BOEKER, individually and in their official capacity; LONNIE
NAIL, individually and in their official capacity; JUDY LOFTON, individually
and in their official capacity; JERRY GOODWIN, individually and in their
official capacity,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:12-CV-791


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       Lee Lucas, Louisiana prisoner # 338382, appeals the dismissal without
prejudice for failure to prosecute his 42 U.S.C. § 1983 complaint against


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 13-30989

various prison officials.    Lucas argues that the district court erred in
dismissing his complaint for failure to pay the initial partial filing fee without
first inquiring as to whether he had complied with the court’s fee order. He
avers that the record reflects that he immediately complied with the district
court’s fee order by sending a letter to prison officials authorizing the release
of funds from his inmate trust account. Lucas avers that the district court’s
order dismissing his complaint should be vacated and that he be reimbursed
the $455 appellate court filing fee. Lucas cites no authority that would allow
this court to return the filing fee, and his request is rejected.
      Pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, a district
court may dismiss a complaint sua sponte if a plaintiff fails to follow a court
order. Long v. Simmons, 77 F.3d 878, 879 (5th Cir. 1996); FED. R. CIV. P. 41(b).
We ordinarily review such a dismissal under an abuse-of-discretion standard.
See McNeal v. Papasan, 842 F.2d 787, 789-90 (5th Cir. 1988). However, the
scope of the district court’s discretion is narrow when the Rule 41(b) dismissal
is with prejudice or when a statute of limitations would bar re-prosecution of a
suit dismissed without prejudice under Rule 41(b). See Berry v. CIGNA/RSI-
CIGNA, 975 F.2d 1188, 1190-91 (5th Cir. 1992).
      The district court’s dismissal without prejudice will very likely operate
as a dismissal with prejudice because Lucas will be barred by the one-year
limitations period for seeking § 1983 relief. See Henson-El v. Rogers, 923 F.2d
51, 52 (5th Cir 1991); LA. CIV. CODE ANN. art. 3492. Therefore, dismissal “is
appropriate only if the failure to comply with the court order was the result of
purposeful delay or contumaciousness and the record reflects that the district
court employed lesser sanctions before dismissing the action.” Long, 77 F.3d
at 880.




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                                  No. 13-30989

      The record contains no indication that Lucas failed to comply with the
initial partial filing fee order for purposes of delay or out of contumaciousness.
Lucas did not demonstrate “the stubborn resistance to authority” that is the
hallmark of contumacious conduct.           McNeal, 842 F.3d at 792 (internal
quotation marks and citation omitted); see Hatchet v. Nettles, 201F.3d 651, 654
(5th Cir. 2000).     Accordingly, the district court abused its discretion in
dismissing Lucas’s complaint for failure to pay the initial partial filing fee. See
id. The district court’s judgment is VACATED and the matter is REMANDED
for further proceedings.




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