Michael Harlston, Sr. v. Office of Personnel Management , 365 F. App'x 39 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2952
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Michael W. Harlston, Sr., *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Office of Personnel Management; *
Merit Systems Protection Board, * [UNPUBLISHED]
*
Appellees. *
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Submitted: February 9, 2010
Filed: February 22, 2010
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Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Michael Harlston appeals from the district court’s preservice dismissal without
prejudice under Federal Rule of Civil Procedure 41(b), for failure to comply with a
court order.
When Harlston filed his pro se employment discrimination complaint, he also
petitioned the court for permission to proceed in forma pauperis and filed an
incomplete financial affidavit. The district court ordered Harlston to file a completed
financial affidavit so that the court could determine whether Harlston was financially
unable to pay the filing fee. However, the district court then issued a second order
directing Harlston to submit an amended complaint, and in that order granted Harlston
in forma pauperis status upon determining that Harlston was financially unable to pay
the filing fee. The district court’s second order thus obviated the need for Harlston
to file a completed financial affidavit, yet it appears the district court inadvertently
overlooked that fact when it later dismissed the complaint for noncompliance with the
first order, which we conclude was an abuse of discretion. See Rodgers v. Curators
of Univ. of Mo., 135 F.3d 1216, 1219 (8th Cir. 1998) (standard of review).
Accordingly, we vacate the district court’s order of dismissal and remand the
case for further proceedings.
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