(caption unavailable)

* Local Rule 47.5 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession." Pursuant to that Rule, the Court has determined that this
opinion should not be published.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________________
Nos. 92-8249 & 92-8250
Summary Calendar
____________________________
SYNNACHIA McQUEEN,
Plaintiff-Appellant,
versus
RAUL MATA, Captain, et al.,
Defendants-Appellees.
and
SYNNACHIA McQUEEN,
Plaintiff-Appellant,
versus
DAVID TURNER, CO III Officer, ET AL.,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(W 91 CV 320 & @ 91 CA 315)
_________________________________________________________________
(December 18, 1992)
Before GARWOOD, JONES, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*

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2
Before us are consolidated appeals from the district
court's orders dismissing McQueen's civil rights cases for failure
to comply with a filing fee order and, in Case No. 92-8249,
revoking McQueen's IFP status on appeal. We hold that the district
court improperly refused to permit McQueen to appeal in forma
pauperis, and, on the merits, the court should not have dismissed
these cases for failure to pay the $20 filing fee ordered by the
magistrate. We vacate and remand these cases to the district
court.
The district court apparently believed that the
magistrate judge denied McQueen leave to proceed IFP in the
district court when the magistrate judge ordered him to pay partial
filing fees. This was a misconception. The magistrate judge
implicitly granted leave to proceed IFP when it imposed the $20
filing fees. See Grissom v. Scott, 934 F.2d 656, 657 (5th Cir.
1991). A pauper whose IFP status has not been decertified need not
move again for leave to appeal IFP on appeal. FRAP 24(a). The
district court may, however, deny a litigant's motion to proceed
IFP on appeal if it certifies that the litigant is not proceeding
in good faith. Id. Here, the court made no such certification,
and the court erred in apparently denying McQueen permission to
appeal IFP under the misconception that he had not been granted IFP
status by the magistrate judge. Because it further appears both
that McQueen has adequately demonstrated his financial need to
appeal IFP and has raised an arguable point for appellate review,
i.e., whether the district court should have dismissed his case,

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3
this court therefore grants his motion for leave to appeal IFP in
Case. No. 92-8249.
On the merits of both cases, the district court acted too
hastily in granting a dismissal -- effectively with
prejudice -- for failure to prosecute. Fed. R. Civ. P. 41(b).
Ordinarily, lesser sanctions such as a conditional dismissal or
dismissal without prejudice are to be preferred unless the
plaintiff has behaved contumaciously. Callip v. Harris County
Child Welfare Dept., 757 F.2d 1513, 1521 (5th Cir. 1985). When
McQueen filed his cases and sought IFP status, he alleged that he
had $21.75 in his prison trust-fund account. The prison
authorities essentially verified his information. If McQueen did
not have even the $40 that the magistrate judge ordered him to pay
as filing fees in both cases, the magistrate judge likely abused
his discretion by ordering payment of those fees. Smith v.
Martinez, 706 F.2d 572, 573 (5th Cir. 1983). On remand, the
magistrate judge should request that McQueen submit a new IFP
affidavit and the court should reconsider the amount of filing fees
that are appropriate.
The judgments of dismissal in these cases are VACATED and
the cases REMANDED for further proceedings.

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