IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20023 Summary Calendar

DARRIS D. TEEL,

Plaintiff-Appellant,

versus

NFN WALKER, Nurse; BURKHACTER, Nurse, CHASTAIN, Dr’s Assistant; OWENS, Officer; COCHETT, Officer; GOMEZ, Reg. Dir.,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-97-CV-302 -------------------- March 21, 2001

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

PER CURIAM:*

Darris D. Teel, Texas state prisoner # 656908, argues

that the district court abused its discretion in dismissing his

complaint for want of prosecution because the Texas prison

officials refused to comply with the district court’s orders to

assist Teel in properly submitting his in forma pauperis (IFP)

application.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-20023 -2-

A district court’s sua sponte dismissal of an action for

failure of a plaintiff to prosecute or to comply with any court

order is reviewed for an abuse of discretion. Fed. R. Civ. P.

41(b); Gonzales v. Firestone Tire & Rubber Co.,

, 247-

48 (5th Cir. 1980). A Rule 41(b) dismissal with prejudice is

considered an extreme sanction which is warranted only when there

is a clear record of delay or contumacious conduct by the

plaintiff, and the district court has expressly determined that

lesser sanctions would not prompt diligent prosecution. Berry v.

CIGNA/RSI-CIGNA,

(5th Cir. 1992).

If a plaintiff’s action would be barred by a statute of

limitations, such as in the instant case, a dismissal under Rule

41(b) is tantamount to a dismissal with prejudice. McNeal v.

Papasan,

, 793 n.1 (5th Cir. 1988); Owens v. Okure,

(1989); Ali v. Higgs,

(5th Cir.

1990).

The record reflects that the district court gave Teel

several opportunities to comply with its orders to provide the

necessary documentation authorizing the payment of the filing fee

in installments from his inmate trust fund. However, it is not

clear from the record whether Teel’s failure to comply with the

orders was the result of his lack of diligence or because prison

officials failed or refused to process his withdrawal authorization

form.

The district court abused its discretion in dismissing

Teel’s complaint without obtaining evidence, by affidavit or

otherwise, with respect to who was responsible for the lack of No. 99-20023 -3-

compliance with its orders. Therefore, the district court’s

dismissal of the complaint is VACATED, and the case is REMANDED to

the district court for further consideration of this issue.

In so doing, we note that since the case was filed, Teel

has become subject to the “three-strikes” bar of in forma pauperis

prisoner litigation. See Teel v. Burrescia, No. 00-11057 (5th

Cir., Feb. 13, 2001) (unpublished). Technically, the bar may not

apply to this suit, which Teel commenced long before the three-

strikes order. See

(g). Teel should be aware,

however, that if this case is unsuccessful in the trial court, the

bar will prevent him from pursuing a further I.F.P. appeal.

Moreover, the imposition of the bar suggests that Teel has a

history of pursuing frivolous litigation, so he could become

subject to a sanction award in the district court if this action is

groundless.

VACATED and REMANDED; Sanctions Warning Issued.