               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                             No. 97-50171
                           Summary Calendar



BILLY RAY MCDOWELL, JR.,

                                          Petitioner-Appellant,

versus

JOE AGUIRRE, Warden,

                                          Respondent-Appellee.

                       - - - - - - - - - -
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. EP-96-CV-481
                       - - - - - - - - - -
                         August 10, 1998

Before JONES, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

     Billy Ray McDowell, Jr., federal prisoner # 05317-069,

appeals from the district court’s dismissal without prejudice of

his Bivens** complaint, construed as a petition for a writ of

habeas corpus under 28 U.S.C. § 2241, for failure to obey an

order of the court.    McDowell has filed a motion for leave to

appeal in forma pauperis (IFP) on appeal and for injunctive




     *
        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that this opinion should not be published and is not precedent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.
     **
       Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971).
                            No. 97-50171
                                 -2-

relief.    McDowell’s motion for leave to proceed on appeal IFP is

GRANTED.    See Fed. R. App. P. 24(a).

     Because McDowell does not challenge the fact or duration of

his confinement, but, rather, challenges the conditions of his

confinement, his petition should be construed as a federal

prisoner’s civil rights complaint under Bivens.    See Cook v.

Texas Dep’t of Criminal Justice Transitional Planning Dep’t, 37

F.3d 166, 168 (5th Cir. 1994).

     A district court may sua sponte dismiss an action for

failure to prosecute or to comply with any court order.     Fed. R.

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

Cir. 1988).   A sua sponte dismissal by the district court is

reviewed for abuse of discretion.    McCullough, 835 F.2d at 1127.

     McDowell’s December 24, 1996, motion, filed within ten days

of the district court’s December 18, 1996, order to amend, was in

substantial compliance with the court’s order.    See Haines v.

Kerner, 404 U.S. 519, 520 (1972) (pro se pleadings are entitled

to a liberal construction).    Because McDowell’s petition should

have been construed as a civil rights complaint, the district

court’s dismissal for failure to name the proper respondent was

improper.   The district court abused its discretion in dismissing

McDowell’s complaint for failure to prosecute.

     The district court’s judgment is VACATED and the case is

REMANDED for further proceedings.   McDowell’s motion for

injunctive relief is DENIED.

     MOTION FOR IFP GRANTED; MOTION FOR INJUNCTIVE RELIEF DENIED;

VACATED AND REMANDED.
