United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-2884
                                    ___________

Marlan A. Penton,                   *
                                    *
          Appellant,                *
                                    * Appeal from the United States
     v.                             * District Court for the
                                    * Western District of Missouri.
Unknown Green; Unknown Sheifer;     *
Unknown Spears; Unknown Lawson; *            [UNPUBLISHED]
Jimmy Rawson; CO II John Shafer,    *
                                    *
          Appellees.                *
                               ___________

                              Submitted: April 20, 2006
                                 Filed: May 2, 2006
                                  ___________

Before ARNOLD, HANSEN, and COLLOTON, Circuit Judges.
                           ___________

PER CURIAM.

       Marlan Penton, a Missouri prisoner, appeals the district court’s order dismissing
his 42 U.S.C. § 1983 action with prejudice as a sanction, pursuant to Federal Rule of
Civil Procedure 41(b). We grant Penton’s motion to proceed in forma pauperis on
appeal, leaving the fee-collection details to the district court. See Henderson v.
Norris, 

, 484-85 (8th Cir. 1997) (per curiam). Upon careful review of
the record, we modify the dismissal to be without prejudice.
       Penton filed this action against prison officials, claiming that they failed to
protect him from two inmate attacks in violation of the Eighth Amendment. In a
pretrial scheduling order, the district court advised the parties that failure to comply
with the scheduling order or to participate in good faith in discovery could result in
sanctions, including dismissal. After Penton was uncooperative at his scheduled
deposition, defendants moved to dismiss the action. The district court found Penton
had intentionally disobeyed the scheduling order by refusing to give substantive
answers to any of defense counsel’s pertinent questions, and the court declined to
grant Penton a second opportunity to obey the scheduling order because of the
inconvenience to defendants from having to drive a considerable distance to depose
him. Thus, the court dismissed the case with prejudice.

       Under Rule 41(b), a defendant may move for dismissal of an action for the
plaintiff’s failure to comply with any court order. We review such dismissals for
abuse of discretion. See Doe v. Cassel, 

, 990 (8th Cir. 2005) (per
curiam). Dismissal with prejudice is an “extreme sanction” that should be used “only
in cases of willful disobedience of a court order or where a litigant exhibits a pattern
of intentional delay.” See Hunt v. City of Minneapolis, 

, 527 (8th Cir.
2000).

       We conclude that dismissal with prejudice was a disproportionately harsh
sanction in this case. There was no contemporaneous warning from the district court
alerting Penton that failure to answer the deposition questions could result in dismissal
of his suit, as the scheduling order was issued five months before the deposition
occurred and it contained only a general warning about possible dismissal for failure
to participate in discovery in good faith. Cf. R.W. Int’l Corp. v. Welch Foods, Inc.,

, 16 (1st Cir. 1991) (scheduling order containing general instructions on
scope of discovery did not qualify as order compelling deponent to answer exact
questions posed at his deposition so as to support dismissal of action under Fed. R.
Civ. P. 37 for deponent’s refusal to answer those questions). Further, the

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uncooperative conduct occurred on only one occasion, and we question whether the
inconvenience to defense counsel from having to drive to the prison to depose Penton
again should have been such an important factor in the court’s decision to impose the
most severe sanction. See 

(sanction imposed must be
proportionate to litigant’s transgression; focus should be on degree of egregious
conduct which prompted dismissal order, and to lesser extent on adverse impact of
such conduct on defendant and administration of justice). In these circumstances, we
believe that a dismissal without prejudice was the most severe sanction that should
have been imposed to punish Penton’s conduct. See Rodgers v. Curators of Univ. of
Mo., 

, 1222 (8th Cir. 1998) (ultimate sanction of dismissal with
prejudice should be used only when lesser sanctions prove futile).

      Accordingly, we modify the dismissal to be without prejudice.
                     ______________________________




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