                         IN THE UNITED STATES COURT OF APPEALS

                                       FOR THE FIFTH CIRCUIT



                                                No. 98-11393
                                              Summary Calendar



AARON ANTHONY SHEPPARD,

                                                                                        Plaintiff-Appellant,

                                                      versus

WELCH, Sergeant; BEIRA, Officer;
JONES, Officer; HENDRIX,
Correctional Officer,

                                                                                        Defendants-Appellees.

                          __________________________________________

                             Appeal from the United States District Court
                                  for the Northern District of Texas
                                       USDC No. 1:98-CV-167
                          __________________________________________

                                                 May 26, 1999

Before POLITZ, BARKSDALE and STEWART, Circuit Judges.

PER CURIAM:*

        Aaron Anthony Sheppard, Texas prisoner #658333, appeals the district court’s dismissal of

his civil rights complaint for failure to pay the initial partial filing fee. Sheppard contends that he

authorized withdrawal of the initial partial filing fee from his inmate trust account but that prison

officials failed to make the deduction.

        Because of the running of the statute of limitations, the district court’s dismissal without

prejudice has the effect of a dismissal with prejudice. Long v. Simmons, 77 F.3d 878, 880 (5th Cir.

1996). “A dismissal with prejudice 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

        *
              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 R. 47.5, the court has determined that this opinion should not be published and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.
employed lesser sanct ions before dismissing the action.” Id. The record does not indicate that

Sheppard failed to comply with the court’s order to secure a delay or out of contumaciousness or that

the district court employed lesser sanctions before dismissing the action. Therefore, the district court

abused its discretion in dismissing the action. See id. The district court’s judgment is VACATED

and the case is REMANDED for further proceedings.




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