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

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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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,

(5th Cir. 1981),

and Long v. Simmons,

(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."

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

The

district court’s judgment is VACATED an the case is REMANDED for

further proceedings.

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