                  IN THE UNITED STATES COURT OF APPEALS
                                FOR THE FIFTH CIRCUIT



                                       No. 00-10413
                                     Summary Calendar



GEORGE PHILLIPS, SR.,
                                                            Plaintiff-Appellant,
                                             versus

LOCKE, LIDDELL & SAPP LLP,

                                                            Defendant-Appellee.
                    _______________________________________

                      Appeal from the United States District Court
                          for the Northern District of Texas
                             USDC No. 3:99-CV-2897-R
                    _______________________________________
                                      November 2, 2000
Before POLITZ, DAVIS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

       Victoria Phillips’ motion to be substituted for George Phillips, who is recently
deceased, for his appeal is GRANTED.

       This appeal follows the district court’s dismissal of George Philips’ complaint

due to Phillips’ failure to follow the order of the magistrate judge. The magistrate


       *
        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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
judge had ordered Phillips to file his suit on a 42 U.S.C. § 1983 complaint form.
The complaint form, however, was for prisoners filing a § 1983 suit. Phillips was

not a prisoner; nor was he seeking to file a civil rights action.

      The district court’s sua sponte dismissal of the complaint based upon Phillips’
failure to follow the erroneous order of the magistrate judge was an abuse of

discretion. See Fed. R. Civ. P. 41(b); McNeal v. Papasan, 842 F.2d 787, 789-90

(5th Cir. 1988). The district court’s alternative conclusion that Phillips’ suit was

duplicative of a suit previously dismissed by another court was also erroneous.
      VACATED and REMANDED.




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