                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            MAR 29, 2007
                             No. 06-11899                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                 D. C. Docket No. 06-00052-CV-T-23TBM

GRADY RODRIQUAS BRYE,



                                                          Petitioner-Appellant,

                                  versus

SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL OF FLORIDA,


                                                      Respondents-Appellees.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                             (March 29, 2007)

Before BIRCH, CARNES and PRYOR, Circuit Judges.

PER CURIAM:
      Grady Rodriquas Brye, a Florida prisoner proceeding pro se, appeals the sua

sponte dismissal of his petition for a writ of habeas corpus for failure to pay the

filing fee or file a motion for leave to proceed in forma pauperis in accord with

Rule 1.03(e) of the Local Rules of the Middle District of Florida. We granted a

Certificate of Appealability on the limited question “[w]hether the district court

properly dismissed the pro se habeas petition without first giving Brye notice and

opportunity to pay the filing fee or file the required documentation.”

      Under Federal Rule of Civil Procedure 41(b), a district court is authorized to

dismiss an action for failure to comply with local rules, Kilgo v. Ricks, 983 F.2d

189, 192 (11th Cir. 1993), and the district court may exercise that power sua

sponte, see Pond v. Braniff Airways, Inc., 453 F.2d 347, 349 (5th Cir. 1972). We

review the order of a district court that dismisses an action for failure to comply

with a local rule for abuse of discretion. Kilgo, 983 F.2d at 192.

      We have held that the district court should not dismiss the action of a pro se

plaintiff based on a local rule when “there is nothing to indicate [the] plaintiff ever

was made aware of it prior to dismissal.” Mitchell v. Inman, 682 F.2d 886, 887

(11th Cir. 1982) (vacating the dismissal of a pro se plaintiff’s complaint for failure

to comply with Local Rule 91.2 of the Northern District of Georgia). In

accordance with that precedent, the district court should not have dismissed Brye’s



                                           2
petition. The record does not establish that Brye had knowledge of the

requirements of Rule 1.03(e) before the district court dismissed his petition.

      Although Brye filed a motion for leave to proceed in forma pauperis with his

initial petition for a writ of habeas corpus, there is no evidence that Brye was aware

of Rule 1.03 or the consequences of failing to file that motion with his petition. To

the contrary, it appears from the record, that Brye believed that, because his motion

for leave to proceed in forma pauperis with respect to his initial petition had been

granted, he was not required to obtain permission to proceed in forma pauperis

with respect to his second petition. In the light of Brye’s pro se status, the district

court should have determined that Brye was aware of the requirements of Rule

1.03(e) and the consequences of non-compliance before sua sponte dismissing

Brye’s petition. The district court abused its discretion when it dismissed the

petition without giving Brye notice of the rule and allowing him an opportunity to

comply. See Mitchell, 682 F.2d 887-88; Moore v. Fla., 703 F.2d 516, 520 (11th

Cir. 1983).

      The order dismissing Brye’s complaint is VACATED and the petition is

REMANDED for further proceedings.




                                            3
