IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-11471 Summary Calendar

RAY WARMSLEY, on behalf of the Families of Prisoners and all Prisoners who are upon and after the filing of this action similarly situated as the Plaintiff Class, Plaintiff-Appellant,

versus

ALLEN POLUNSKY, and Members of the Texas Board of Criminal Justice, and all Texas Department of Criminal Justice -- Institutional Division’s Prison Security Guards,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 1:98-CV-192-C -------------------- February 4, 2000

Before KING, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

Ray Warmsley, Texas prisoner #440277, appeals from the

dismissal of his civil rights complaint without prejudice and the

denial of his motion to reinstate his complaint. Warmsley moves

for reimbursement of the costs of his appeal and an award of

attorney fees. Warmsley’s motion is DENIED.

Warmsley’s complaint was dismissed because he did not comply

with the district court’s order assessing him pursuant to the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-11471 -2-

Prison Litigation Reform Act (PLRA) within the time allowed by

the district court. Warmsley contends that the district court

erred by dismissing his complaint and denying his motion for

reinstatement because he did all in his power to ensure the

submission of the initial partial filing fee.

The dismissal of Warmsley’s complaint without prejudice was

an abuse of discretion. Larson v. Scott,

(5th Cir. 1998). The district court made no inquiry regarding

whether Warmsley had complied with the initial partial filing fee

order. Prisoners have no control over the processing of their

prison trust-fund withdrawals after they have consented to those

withdrawals, when consent is required. We hold that it is an

abuse of discretion for a district court to dismiss an action for

failure to comply with an initial partial filing fee order

without making some inquiry regarding whether the prisoner has

complied with the order.

If a prisoner appears not to have complied with the district

court’s initial partial filing fee order within the applicable

time period, the district court should make a reasonable inquiry

designed to ascertain whether the prisoner has complied with the

order. Failure to make such an inquiry will render a subsequent

dismissal of failure to comply an abuse of discretion. Larson,

. The relevant inquiry regarding whether the

prisoner has complied with an initial partial filing fee order

may be made by allowing objections to a magistrate judge’s

report, see

(b)(1)(C), issuing a show-cause order,

see Harrelson v. United States,

(5th Cir. No. 98-11471 -3-

1980), communicating by telephone, fax, or e-mail with prison or

jail officials, issuing an order to the custodial institution, or

using any other method designed to obtain the relevant

information. Any inquiry, and any response, must be reflected on

the record so that this court may review any subsequent

dismissal. When a prisoner is allowed to respond to a magistrate

judge’s report or a show-cause order, a sworn affidavit or

unsworn declaration made under penalty of perjury,

, indicating that he has complied with the initial partial

filing fee order and setting forth the details of his compliance

or copies of any relevant consent forms ordinarily will be

sufficient to avoid dismissal for failure to comply. Prisoners

are reminded that false statements in their pleadings may result

in sanctions against them, see FED. R. CIV. P. 11(c), including

dismissal with or without prejudice, and that false statements in

an affidavit or unsworn declaration made under penalty of perjury

may result in prosecution for perjury.

.

Warmsley submitted a statement made under penalty of perjury

setting forth the facts of his compliance. The district court

should obtain information from the Texas Department of Criminal

Justice to determine whether Warmsley indeed complied with the

initial partial filing fee order within the time allowed for

compliance by submitting the required consent forms to prison

authorities.

Accordingly, IT IS ORDERED that the judgment of the district

court dismissing Warmsley’s action is VACATED and that his case

is REMANDED for further proceedings. No. 98-11471 -4-

VACATED AND REMANDED.