* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30431

Summary Calendar

SHEDRICK BRUMFIELD

Plaintiff-Appellant

v.

SHIRLEY COODY, UNKNOWN BEOKER, Lieutenant; DAVID HONEYCUTT,

Colonel; DAVID DAIGRENPONT, Sergeant; RICHARD STALDER; LINDA

RAMSEY

Defendants-Appellees

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:07-CV-64

Before WIENER, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Shedrick Brumfield, Louisiana prisoner # 395469,

moves for leave to proceed in forma pauperis (IFP) on appeal from the district

court’s denial of a FED. R. CIV. P. 60(b) motion challenging the dismissal of

Brumfield’s 42 U.S.C. § 1983 claims against defendants Coody, Beoker,

Honeycutt, and Daigrenpontfor failure to perfect service of process. The district

United States Court of Appeals

Fifth Circuit

F I L E D

December 17, 2008

Charles R. Fulbruge III

Clerk
No. 08-30431

2

court concluded that Brumfield’s claims against these defendants were not

frivolous, butit granted their motion to dismiss for failure to perfect service after

the court did not receive a response to its order that Brumfield had thirty days

in which to perfect service. 

By moving for leave to proceed IFP, Brumfield is challenging the district

court’s certification that his appeal was not taken in good faith. See Baugh v.

Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); FED. R. APP. P.

24(a)(3). Brumfield contends that he attempted to comply with the court’s

instruction to perfect service, but that the clerk of court did not respond to his

correspondence. For the reasons detailed below, we VACATE the district court’s

certification that the appeal is not taken in good faith. 

Although FED.R.CIV. P. 4(m) directs that a dismissal for failure to perfect

service should be without prejudice, see Rule 4(m), the judgment of dismissal in

this case did not specify that the complaint was dismissed without prejudice. A

dismissal that is silent as to prejudice sounds as a dismissal with prejudice. See

Nationwide Mut. Ins. Co. v. Unauthorized Practice of Law Comm., 283 F.3d 650,

656 n.26 (5th Cir. 2002). Moreover, our review of the record leads us to conclude

that Brumfield may be entitled to Rule 60(b) relief because his failure to perfect

service was based on excusable neglect. See Rule 4(m); see also Henderson v.

United States, 517 U.S. 654, 661-62 (1996) (holding that the 120-day provision

in Rule 4 is not jurisdictional and may be extended at the discretion of the

district court). The record shows that Brumfield complied with “the core

function of service [by supplying] notice of the pendency of [the] legal action, in

a manner and at a time that afford[ed] the defendant[s] a fair opportunity to

answer the complaint and present defenses and objections.” See Henderson, 517

U.S. at 671-72. 

Because the district court determined that the appeal was not taken in

good faith, it did not address whether Brumfield is financially eligible to appeal

IFP. We note that Brumfield received $10000 in settlement of a prior civil rights
No. 08-30431

3

lawsuit in December 2006. See Brumfield v. Cain, No. 3:03-cv-486 (M.D. La.

Dec. 19, 2006). Brumfield states that the majority of this award was used to pay

his criminal attorney. Although Brumfield’s current affidavit of poverty provides

adequate grounds to support a grant of IFP, a court may require additional proof

of poverty as part of its inherent authority under § 1915(d). Prows v. Kastner,

842 F.2d 138, 140 (5th Cir. 1988). Accordingly, the motion to appeal IFP is

HELD IN ABEYANCE and the case is REMANDED to the district court for

clarification of Brumfield’s financial status. We express no intimation regarding

Brumfield’s financial eligibility to appeal IFP.