UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-40093
Summary Calendar
WILLIAM HAMILTON GARTRELL,
Plaintiff-Appellant,
VERSUS
JAMES R. ZELLER, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas
USDC No. C-96-CV-464
November 11, 1997
Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
William Gartrell appeals from the district court’s dismissal,
without prejudice, of his 42 U.S.C. § 1983 complaint for failure to
comply with a court order. See FED. R. CIV. P. 41(b). Because of
the running of the statute of limitations, the district court’s
*
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opinion should not be published and is not precedent except under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.
dismissal without prejudice could have the effect of a dismissal
with prejudice. See Burden v. Yates, 644 F.2d 503 (5th Cir. 1981),
and Long v. Simmons, 77 F.3d 878, 880 (5th Cir. 1996). "A
dismissal with prejudice is appropriate only if the failure to
comply with the court order was the result of purposeful delay or
contumaciousness and the record reflects that the district court
employed lesser sanctions before dismissing the action." Id.
The record does not indicate that Gartrell failed to comply
fully with the court’s order to secure a delay or out of
contumaciousness or that the district court employed lesser
sanctions before dismissing the action. Therefore, the district
court abused its discretion in dismissing the action. See id. The
district court’s judgment is VACATED an the case is REMANDED for
further proceedings.
2