     Case: 11-31060     Document: 00511859995         Page: 1     Date Filed: 05/17/2012




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

                                                                            FILED
                                                                           May 17, 2012
                                     No. 11-31060
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

RENODE COLLINS,

                                                  Plaintiff-Appellant

v.

JAMES M. LEBLANC, in his individual and official capacities as Secretary of
Corrections; N. BURL CAIN, in his individual and official capacities as Warden;
RICHARD PEABODY, in his individual and official capacities as Deputy
Warden; CINDY VANNOY, in her individual and official capacities as
Lieutenant; DARREL VANNOY, in his individual and official capacities as
Deputy Warden; TRISH FOSTER, in her individual and official capacities as
Director of Legal Programs; LINDI RAMSAY, in her individual and official
capacities,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:11-CV-173


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Renode Collins, Louisiana prisoner # 313898, seeks leave to proceed in
forma pauperis (IFP) on appeal. By moving for IFP, Collins is challenging the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-31060

district court’s certification that IFP status should not be granted on appeal
because his appeal from the dismissal of his 42 U.S.C. § 1983 suit is not taken
in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      Collins argues that the district court abused its discretion in dismissing
his suit for failure to prosecute, based on his failure to pay the initial partial
filing fee. See FED. R. CIV. P. 41(b); McCullough v. Lynaugh, 835 F.2d 1126, 1127
(5th Cir. 1988). Although the district court’s order indicates that the dismissal
was without prejudice, any attempt by Collins to refile his suit would be barred
by the applicable limitations period, and the dismissal should be considered as
a dismissal with prejudice. See Wallace v. Kato, 549 U.S. 384, 387 (2007); Berry
v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992); LA. CIV. CODE ANN.
arts. 3463, 3492. As a result, the district court’s discretion to dismiss the case
is limited. See Berry, 975 F.2d at 1191. “A district court’s dismissal with
prejudice is warranted only where a clear record of delay or contumacious
conduct by the plaintiff exists and a lesser sanction would not better serve the
interests of justice.” Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 326 (5th
Cir. 2008) (quotation marks and citation omitted).
      There is not a clear record of purposeful delay or contumaciousness on the
part of Collins in this case. The magistrate judge ordered Collins to show cause
why he had failed to pay the initial partial filing fee and notified him that if he
failed to comply his suit could be dismissed. In response, Collins asserted that
he had sent a letter to Inmate Banking asking for payment. Despite this, the
magistrate judge recommended dismissal because Collins had failed to allege
that he had submitted a draw slip to authorize the withdrawal of funds from his
prison account. In his objections to the magistrate judge’s report, Collins
maintained that he had assumed the magistrate judge would realize that he had
submitted a draw slip with his letter to Inmate Banking and asserted under
penalty of perjury that he had done so. Thus, Collins did reply to the show cause
order and indicated that he had sought payment of the initial filing fee, and his

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                                  No. 11-31060

objections reflected his attempts to clarify any confusion about the steps he had
taken to authorize the payment.
      Accordingly, the district court’s dismissal of Collins’s suit constituted an
abuse of discretion. See McCullough, 835 F.2d at 1127. Collins’s motion for
leave to proceed IFP on appeal is GRANTED. Because further briefing is not
required, the district court’s judgment is VACATED and the case is
REMANDED for further proceedings.




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