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

                                                                            FILED
                                                                          October 3, 2007

                                     No. 06-41328                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


PAUL ALLEN BROWN

                                                  Plaintiff-Appellant

v.

MICHAEL KING; LAURA MCKINNON; CLINT SELMAN; JAMES VAN
METER; JOHN RAASOCH; BILLY SHELTON

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:06-CV-199


Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
       Paul Allen Brown, Texas prisoner # 1135724, proceeding pro se and in
forma pauperis, appeals the dismissal of his 42 U.S.C. § 1983 complaint.
       On 18 May 2006, the district court issued an order, providing: Brown's
pleadings were deficient, he needed to amend his complaint to correct
deficiencies, and failure to do so within 30 days would result in dismissal. On
28 July 2006, after considering Brown’s objections, the district court dismissed

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                   No. 06-41328

the proceeding without prejudice for Brown’s failure to amend his complaint.
Brown maintains his mental illness prevents his amending his complaint or
taking other appropriate action.
       A district court may dismiss sua sponte an action for failure to prosecute
or to comply with any order. FED. R. CIV. P. 41(b); McCullough v. Lynaugh, 835
F.2d 1126, 1127 (5th Cir. 1988). The scope of the court's discretion is narrower
when a Rule 41(b) dismissal is with prejudice or when a statute of limitations
would bar re-prosecution of an action dismissed under Rule 41(b) without
prejudice. Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992).
Although the district court dismissed Brown’s action without prejudice, the
dismissal was effectively with prejudice due to the two-year statute of
limitations. See Owens v. Okure, 488 U.S. 235, 249-50 (1989); TEX. CIV. PRAC. &
REM. CODE ANN. § 16.003(a).
       Where the limitations period “prevents [] or arguably may prevent” further
litigation, the standard of review should be the same as used for reviewing a
dismissal with prejudice. Boazman v. Econ. Lab., Inc., 537 F.2d 210, 212-13 (5th
Cir. 1976). This court “will affirm dismissals with prejudice for failure to
prosecute only when (1) there is a clear record of delay or contumacious conduct
by the plaintiff, and (2) the district court has expressly determined that lesser
sanctions would not prompt diligent prosecution, or the record shows that the
district court employed lesser sanctions that proved to be futile”. Berry, 975 F.2d
at 1191 (footnote omitted).
       There is not a clear record of purposeful delay or contumacious conduct by
Brown. The order to amend was issued 18 May 2006. The action was dismissed
on 28 July 2006. There were no other instances in which Brown did not comply
with a court order. See Berry, 975 F.2d at 1191 & n.5. Moreover, the district
court did not determine lesser sanctions would not prompt diligent prosecution,
nor did it employ lesser sanctions which proved to be futile. See id. at 1192 &
n.7.

                                        2
                               No. 06-41328

     Accordingly, the dismissal of Brown's action was an abuse of discretion.
The judgment is VACATED and this matter is REMANDED for further
proceedings.




                                     3
