Hickman v. Texas Dept of Cr

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-50961
Summary Calendar
KENNETH W. HICKMAN,
Plaintiff-Appellant,
versus
TEXAS DEP’T OF CRIM. JUSTICE,
INST’L DIV.; SHERRY A. McDOUGLE;
JANIE MUNIZ; COREY HARRIS,
Defendants-Appellees.
Appeal from the United States District Court
For the Western District of Texas
(W-96-CV-210)
August 7, 1997
Before POLITZ, Chief Judge, WIENER and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Kenneth W. Hickman, a Texas state prisoner, filed a civil rights complaint
and requested leave to proceed in forma pauperis. The district court ordered
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Hickman to pay an initial partial filing fee of $6.00. Hickman sought an extension
of time within which to pay the fee and the district court extended same until
October 17, 1996. The district court subsequently dismissed the complaint on the
grounds that the initial partial filing fee had not been paid. Hickman moved for
reinstatement, contending that he had paid the $6.00 fee, attaching to his motion
a trust fund account statement and a date-stamped letter reflecting that a $6.00
payment had been made to the clerk of the district court during August 1996.
Hickman gave notice of his appeal. The district court then denied the motion for
reinstatement because of the appeal.
Although a district court may dismiss an action for failure to prosecute or to
comply with any court order, if the action is dismissed for failure to pay the initial
partial filing fee when in fact the fee has been paid, the dismissal constitutes an
abuse of the district court’s discretion.1 The docket sheet does not reflect that the
initial partial filing fee has been paid, but the documents submitted by Hickman in
his motion for reinstatement do. We therefore must VACATE the district court’s
order of dismissal and REMAND for determination of the actual facts and such
further proceedings as are found appropriate.
VACATED and REMANDED.
1
Fed.R.Civ.P. 41(b); McCullough v. Lynaugh, 835 F.2d 1126 (5th Cir. 1988).
2