IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40583 Summary Calendar

JOHN C. SPURLOCK

Plaintiff - Appellant

v.

WAYNE SCOTT, sued in their individual capacities and official capacities; ARTHUR H VELASQUEZ, sued in their individual capacities and official capacities; BRENDA, SENIOR WARDEN, STEVENSON UNIT sued in their individual capacities and official capacities; AMADO IGLESIAS, sued in their individual capacities and official capacities; JAMES C SCHROEDTER, sued in their individual capacities and official capacities; FLOYD LANGE, sued in their individual capacities and official capacities; RANDY E SMIDT, sued in their individual capacities and official capacities; MICHAEL K LOTT, sued in their individual capacities and official capacities; PATRICK A PATEK, sued in their individual capacities and official capacities; GLEN A YOUNG, sued in their individual capacities and official capacities; FRANK RODRIQUEZ, sued in their individual capacities and official capacities; DEBORAH G VILLARREAL, sued in their individual capacities and official capacities

Defendants - Appellees

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. V-00-CV-67 -------------------- November 12, 2001

Before KING, Chief Judge, and HIGGINBOTHAM and BENAVIDES, Circuit Judges.

PER CURIAM:*

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40583 -2-

John C. Spurlock, Texas prisoner # 741571, applied for leave

to proceed in forma pauperis ("IFP") in this civil rights action.

Spurlock was ordered to amend his complaint and pay the full

filing fee within thirty days. After amending his complaint,

Spurlock filed a second application to proceed IFP, showing that

his prisoner trust fund account had been subsequently depleted.

Acting under its inherent powers to manages its own affairs, the

district court dismissed the complaint without prejudice for

failure to comply with its orders. Spurlock has appealed.

A complaint may be dismissed because of the plaintiff's

failure to prosecute or for lack of compliance with the Federal

Rules of Civil Procedure or a court order. Fed. R. Civ. P.

41(b); see Link v. Wabash R. Co.,

(1962);

see also Hatchet v. Nettles,

(5th Cir. 2000)

(clarifying statutory procedures applicable to prisoners' IFP

motions in the district court). The district court's order is

reviewed for an abuse of discretion. Link,

.

In cases involving prisoners proceeding IFP, the district

court is required to "assess and, when funds exist, collect, as

partial payment of any court fees required by law, an initial

partial filing fee. . . ."

(b)(1). "In no event

shall a prisoner be prohibited from bringing a civil action . . .

for the reason that the prisoner has no assets and no means by

which to pay the initial partial filing fee."

(b)(4). A district court has the power to manage its own

affairs so as to achieve the orderly and expeditious disposition No. 01-40583 -3-

of cases, including the power to dismiss a case for failure to

comply with the court's order, but the exercise of such power

should be confined to instances of bad faith or willful abuse of

the judicial process. See Woodson v. Surgitek, Inc.,

(5th Cir. 1995). The record indicates that when

Spurlock complied with the district court's order to amend his

complaint, he lacked sufficient funds to pay the full filing fee.

There is no indication that Spurlock's lack funds at that point,

and therefore his failure to pay the full filing fee, was the

result of bad faith or a willful disobedience of the district

court. Accordingly, the dismissal of the complaint was an abuse

of discretion. The order of dismissal is VACATED and the case is

REMANDED for further proceedings.

Spurlock also argues that the district court erred by

ordering him to amend his original complaint and by denying his

motion for an injunction. There is no merit to the argument

concerning the amended complaint. See Fed. R. Civ. P. 8

(requiring that complaint contain a "short and plain statement of

the claim showing the pleader is entitled to relief"). As for

denial of the motion for an injunction, Spurlock attempted to

take an interlocutory appeal from this order but his notice of

appeal was untimely, and we therefore lack appellate jurisdiction

to review the claim. See Fed. R. App. P. 4(a)(1)(A); United

States v. Cooper,

(5th Cir. 1998)(a timely

notice of appeal is necessary to the exercise of appellate

jurisdiction).

VACATED AND REMANDED.