* 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that this opinion should not be published and is not precedent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. 96-41035

(Summary Calendar)

__________________

DARRELL E. BALDWIN,

 Plaintiff-Appellant,

versus

JIMMY ROLLO, Captain; JAMES MCCORMICK, 

Lieutenant; JOHN JACOBS, Sergeant; 

JASON JEFFUS, Sergeant; COY PRICE, 

COIII; RAYMOND WATKINS, COIII;

ORLANDO JOHNSON, COIII; JOE NELL ROSS, COIII,

 Defendants-Appellees.

- - - - - - - - - -

Appeal from the United States District Court

for the Eastern District of Texas

(USDC No. 9:96-CV-251)

- - - - - - - - - -

November 24, 1997

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges. 

PER CURIAM:*

Darrell E. Baldwin, Texas prisoner #491905, appeals the

dismissal of his 42 U.S.C. § 1983 action for failure to comply with

court orders under Fed. R. Civ. P. 41(b). Baldwin does not

specifically raise an issue relating to the basis of the district

court's dismissal under Rule 41(b), other than to state that he
2

complied with the court’s orders directing him to file a properly

certified in forma pauperis application. 

A district court may sua sponte dismiss an action for failure

to prosecute or to comply with any court order. McCullough v.

Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988). Although the

district court dismissed Baldwin’s complaint without prejudice, the

dismissal operates as a dismissal with prejudice because Baldwin

would be barred by the applicable limitations period from filing a

new complaint. See Berry v. GIGNA/RSI-CIGNA, 975 F.2d 1188, 1191

(5th Cir. 1992). Thus, the dismissal is properly analyzed as one

with prejudice. 

Baldwin did not object to the report and recommendation of the

magistrate judge. Accordingly, this court’s review is limited to

plain error. Douglass v. United Servs. Auto. Assn, 79 F.3d 1415,

1428-29 (5th Cir. 1996) (en banc). 

To prevail on plain-error review, an appellant must show:

“(1) that an error occurred; (2) that the error was plain, which

means clear or obvious; (3) the plain error must affect substantial

rights; and (4) not correcting the error would ‘seriously affect

the fairness, integrity or public reputation of judicial

proceedings.’” Highlands Ins. Co. v. National Union Fire Ins. Co.,

27 F.3d 1027, 1032 (5th Cir. 1994). 

Ordinarily this court will affirm a dismissal with prejudice

only "(1) upon a showing of `a clear record of delay or

contumacious conduct by the plaintiff' and (2) when ‘lesser

sanctions would not serve the best interests of justice.'"
3

Sturgeon v. Airborne Freight Corp., 778 F.2d 1154, 1159 (5th Cir.

1985) (emphasis original) (citations omitted). Dismissal with

prejudice is "[t]he ultimate sanction for the litigant," and

"should be imposed only after full consideration of the likely

effectiveness of less-stringent measures." Hornbuckle v. Arco Oil

& Gas Co., 732 F.2d 1233, 1237 (5th Cir. 1984). 

The record does not clearly evince delay or contumacious

conduct on the part of Baldwin, even though he failed to respond,

or to respond adequately, to two different court orders. See

Berry, 975 F.2d at 1191-92 n.6. ("Generally, where a plaintiff has

failed only to comply with a few court orders or rules, we have

held that the district court abused its discretion in dismissing

the suit with prejudice.") Although the district court warned

Baldwin that failure to comply with its orders could result in

dismissal, the record does not reflect that the court considered or

employed any alternative lesser sanction, such as a monetary

sanction, prior to dismissing the suit. Therefore, the district

court's dismissal was plain error. Hornbuckle, 732 F.2d at 1237.

Baldwin also seeks appointment of counsel on appeal. Because

we vacate and remand the case to the district court, the motion for

appointment of counsel on appeal is denied as unnecessary.

ORDER OF DISMISSAL VACATED and REMANDED; MOTION FOR APPOINTMENT OF

COUNSEL DENIED.