* Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule

47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-30404

Summary Calendar

 

DAVID BOUDREAUX, SR.,

Plaintiff-Appellant,

versus

R.L. PEABODY; R. RITCHIE; R. DREETS;

D. RABALAIS; G. TEMPLETON,

Defendants-Appellees.

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Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 95-CV-797-A

- - - - - - - - - -

June 10, 1997

Before JONES, DeMOSS and PARKER, Circuit Judges.

PER CURIAM:*

David Boudreaux, Sr., Louisiana prisoner #72912, moves this

court for leave to appeal in forma pauperis (IFP) under the

Prison Litigation Reform Act of 1995 (PLRA) in his appeal from

the district court’s dismissal of his civil rights complaint for

failure to comply with an order of the court to pay a partial
No. 96-30404

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filing fee. See Fed. R. Civ. P. 41(b). Boudreaux’s motion for

leave to proceed IFP is GRANTED.

The PLRA requires a prisoner appealing IFP in a civil action

to pay the full amount of the filing fee, $105. 28 U.S.C 

§ 1915(b)(1). As Boudreaux does not have funds for immediate

payment of this fee, he is assessed an initial partial filing fee

of $5.59 pursuant to § 1915(b)(1). Following payment of the

partial filing fee, funds shall be deducted from Boudreaux’s

prisoner account until the full filing fee is paid. 

§ 1915(b)(2). 

IT IS ORDERED that Boudreaux authorize the appropriate

prison authorities to withdraw the initial partial filing fee

from his trust fund account in accordance with the procedures

required by the prison and to forward payment of the initial

partial filing fee to the Clerk of the U.S. District Court for

the Middle District of Louisiana. IT IS FURTHER ORDERED that the

agency having custody of Boudreaux’s inmate account shall forward

payments from his account to the Clerk of the District Court for

the Middle District of Louisiana each time the amount in the

account exceeds $10 until the filing fees are paid in accordance

with 28 U.S.C. § 1915(b)(2). 

Boudreaux argues that the district court abused its

discretion in ordering him to pay a partial filing fee of $5.50

and in dismissing his complaint for failure to comply with the

court’s order to pay the filing fee. Boudreaux contends that he
No. 96-30404

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was unable to comply within the twenty-day period specified in

the order because the prison would not release funds in his

account without an original cost notice from the district court. 

He argues that he filed a motion to obtain the original cost

notice and a motion for an extension of time to comply with the

order but that the court did not rule on his motions.

Boudreaux has not demonstrated that the district court

abused its discretion in ordering that he pay a partial filing

fee. Prows v. Kastner, 842 F.2d 138, 140 (5th Cir.), cert.

denied, 488 U.S. 941 (1988). 

Although the district court's order of dismissal was without

prejudice, because the applicable one-year prescriptive period

has lapsed, the dismissal effectively was a dismissal with

prejudice. See Elzy v. Roberson, 868 F.2d 793, 794 (5th Cir.

1989); La. Civ. Code Ann. art. 3492 (West 1994). A Rule 41(b)

dismissal with prejudice will be affirmed if the "case discloses

both 1) a clear record of delay or contumacious conduct by the

plaintiff, and 2) that a lesser sanction would not better serve

the best interests of justice." McNeal v. Papasan, 842 F.2d 787,

790 (5th Cir. 1988). There is not a clear record of delay or

contumacious conduct in this case. Because the record does not

show that the district court either employed lesser sanctions

that proved futile or made express findings concerning the

inadequacy of lesser sanctions, see McNeal, 842 F. 2d at 793, the

district court abused its discretion in dismissing under Rule
No. 96-30404

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41(b). See Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1192 (5th

Cir. 1992). Accordingly, the dismissal is VACATED and the case

is REMANDED for further proceedings.

IFP GRANTED; VACATED AND REMANDED.