Sidney MERRILL, Plaintiff-Appellant, v. Rick PERRY, Governor; Gary Johnson; Susan Schumacher; Trinci, Warden; Diana Elephant; et al., Defendants-Appellees, 117 F. App'x 382

PER CURIAM: Sidney Merrill, Texas prisoner #406322, appeals the district court’s dismissal of his civil rights complaint for failure to pay the filing fee. Merrill has asserted that he has attempted to comply with the court’s orders to pay the fee but officials at the Texas Department of Criminal Justice (TDCJ) where he is imprisoned have not complied with his requests for a withdrawal from his inmate trust account. Merrill has also filed a motion for a restraining order and protection.

Although the district court dismissed Merrill’s suit without prejudice, he is effectively barred from refiling one of his personal injury claims because of the two-year statute of limitations. See Long v. Simmons, 77 F.3d 878, 879-80 (5th Cir.1996)(statute of limitations can cause a dismissal without prejudice to operate as a dismissal with prejudice); Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989) (the general provision injury statute of limitations for the forum state is used for 42 U.S.C. § 1983 claims); Tex. Civ.

Prac. & Rem.Code Ann. § 16.003(a) (West 1998)(two-year injury limitations period in Texas). It does not appear from the face of the record that Merrill’s failure to pay the filing fee resulted from “delay or contumacious conduct.” See Colle v. Brazos County, Tex., 981 F.2d 237, 243 (5th Cir.1993). It is therefore ORDERED that the judgment of the district court dismissing Merrill’s complaint be VACATED and that the case be REMANDED for further proceedings. Merrill’s motion for a restraining order and protection is DENIED. VACATED AND REMANDED; MOTION DENIED.

Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.