IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 97-40224 Summary Calendar __________________

DAVID MUDGE,

Plaintiff-Appellant,

versus

RON CAWTHON, Chief Jailer; DAVID PETRUSAITIS; Aransas County Jail,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. C-96-CV-655 - - - - - - - - - - November 25, 1997 Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

David Mudge, Texas prisoner #689684, appeals from the

district court’s dismissal of his

complaint for

failure to comply with a court order. See Fed. R. Civ. P. 41(b).

Because the district court’s dismissal order was silent

regarding whether the dismissal was with or without prejudice,

the dismissal “operates as an adjudication upon the merits,”

i.e., as a dismissal with prejudice. Rule 41(b); see Nagle v.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 97-40224 -2-

Lee,

(5th Cir. 1988). “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.” Long v.

Simmons,

(5th Cir. 1996).

The record does not indicate that Mudge failed to comply

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 and the case is REMANDED

for further proceedings.