                  United States Court of Appeals
                       FOR THE EIGHTH CIRCUIT
                               ___________

                               No. 99-1932
                               ___________

Jerome Smith,                        *
                                     *
             Appellant,              *
                                     *
      v.                             *
                                     *
Edward F. Tripp, Department of       *
Public Safety; Carl Gilmore,         *
Division of Corrections; L. L.       *
Edward, Captain; Unknown Nixion,     * Appeal from the United States
Caseworker; Unknown Schurtz, LPN; * District Court for the
Unknown Harvey, LPN; Unknown         * Eastern District of Missouri.
McGee, Lt.; Unknown Williams, Lt.;   *
Unknown Reese, Capt.; Unknown        *      [UNPUBLISHED]
Booker, Lt.; Unknown Smith, COI;     *
Unknown Townsley, Medical Staff;     *
Mick Unknown; Unknown White,         *
LPN; Unknown Black, Lt.; Unknown     *
Udo, LPN,                            *
                                     *
             Appellees.              *
                                ___________

                       Submitted: January 6, 2000
                           Filed: January 14, 2000
                               ___________

Before BOWMAN, FAGG, and MURPHY, Circuit Judges.
                          ___________

PER CURIAM.
       Jerome Smith appeals the District Court’s order dismissing his 42 U.S.C. § 1983
complaint for failure to comply with a pretrial order. For reversal, Smith argues the
District Court erred in dismissing his complaint because he did not demonstrate willful
delay, he is pro se and was not informed of possible sanctions, and defendants were not
prejudiced by his delay.

       We conclude the District Court did not abuse its discretion in dismissing his
complaint. See Edgington v. Missouri Dep’t of Corrections, 52 F.3d 777, 779 (8th Cir.
1995). However, after examining the record–which reflects Smith’s otherwise
consistent efforts to prosecute his case and obey court orders–and after carefully
balancing the policy of giving Smith his “day in court against the policies of preventing
undue delay, avoiding court congestion, and preserving respect for court procedures,”
Omaha Indian Tribe v. Tract–I Blackbird Bend Area, 933 F.2d 1462, 1468-69 (8th
Cir.) (quoted case omitted), cert. denied, 502 U.S. 942 (1991), we are persuaded that
the “with prejudice” component of the dismissal was unwarranted, see Rodgers v.
Curators of Univ. of Missouri, 135 F.3d 1216, 1219 (8th Cir. 1998) (sanction imposed
by district court must be proportionate to litigant’s transgression); Brown v. Frey, 806
F.2d 801, 804-05 (8th Cir. 1986) (dismissal of inmate’s pro se habeas complaint with
prejudice for failure to file pretrial materials reversed where he had diligently pursued
his lawsuit to best of his ability until issuance of pretrial order).

      Accordingly, we affirm the dismissal but modify it to be without prejudice.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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