                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit

                       ___________________________

                               No. 97-60857
                       ___________________________

                         MELVIN LOUIS HOLESOME,

                                                     Plaintiff-Appellant,

                                   VERSUS

                    PONTOTOC COUNTY JAIL, ET AL.,

                                                    Defendants-Appellees.

         ___________________________________________________

            Appeal from the United States District Court
              for the Northern District of Mississippi
                           (3:94-CV-16-B)
         ___________________________________________________

                                July 15, 1999

Before POLITZ, HIGGINBOTHAM and DAVIS, Circuit Judges.

PER CURIAM:*

     The    district    court     dismissed     Melvin   Louis   Holesome’s

(“Holesome”) 42 U.S.C. § 1983 claim for Holesome’s alleged failure

to prosecute.   Because we find this dismissal premature, we vacate

the district court’s order of dismissal and remand the case for

further proceedings.

                                     I.

     Holesome filed a pro se civil rights complaint, against the

Pontotoc County Jail (“Pontotoc”) alleging that his constitutional

rights were violated when he was assaulted by another inmate and




     *
      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this opinion should not be published and is not precedent except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.
was denied medical treatment until the following day. 2.3

     The district court certified that Holesome could proceed with

his suit in forma pauperis (“IFP”).          The court granted Holesome

permission to file an amended complaint naming Sheriff Randy

Roberts, Deputy Wayne Tutor, Deputy Steve Young, Deputy Jimmy Hipp,

and Deputy Purvis4 as defendants.          Holesome later settled with

Tutor and Young for $500 and dismissed his lawsuit against them.

     Holesome submitted his witness list to the district court

which included several inmates.          In this witness list, Holesome

stated that he would be unable to pay for the witnesses’ court

appearance costs and requested the district court’s guidance.            In

response to Holesome’s request for issuance of writs of habeas

corpus ad testificandum for himself and his witnesses, the district

court ordered that Holesome advance the U.S. Marshall’s costs for

transporting him and his witnesses in the amount of $442.36.             In

the order, the district court warned Holesome that failure to pay

these costs would result in the dismissal of his suit for failure

to prosecute.

     Holesome responded to the district court’s order stating that

he was indigent and had been granted in forma pauperis status. He

requested    that   the   judge   stay    the   trial   date   pending   an

interlocutory appeal on the issue.        The district court maintained


     2
      Holesome was allegedly knocked from his upper bunk bed by a
prisoner with a history of mental problems. As a result of the
fall, Holesome suffered a laceration that required sutures.


         4
        Purvis was never served with a summons and complaint.
Therefore, pursuant to Fed. R. Civ. P. 4(m), Holesome has abandoned
his claim against Purvis.

                                    2
the trial date and when Holesome was not present when the case was

called for trial, the district court dismissed the suit with

prejudice.

                                     II.

     Under the circumstances of this case, the district court did

not abuse its discretion in requiring Holesome to advance the costs

for guards to transport him and his fellow prisoner witnesses to

trial as a condition to issuance of the writ.              Holesome partially

settled his case against some of the defendants for a sum that was

sufficient   to   cover   these   costs.          He   made    no    satisfactory

explanation for disposing of these funds rather than using them to

finance his litigation against the remaining defendants.

     We conclude, however, that the district court abused its

discretion in dismissing this suit.

     “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, 77 F.3d 878, 880 (5th Cir. 1996). Contumacious conduct has

been described as the “‘stubborn resistance to authority.’” McNeal

v. Papasan, 842 F.2d 787, 792 (5th Cir. 1988)(citation omitted).

     On   remand,   the   district        court   should      give    Holesome   a

reasonable time to comply with the court’s order to advance the

transportation costs.     If Holesome is unable to comply with the

order within a reasonable time, the district court should consider

other options that may avoid dismissal.                In addition to other

relevant factors, the court should consider whether Holesome and

his prisoner witnesses are needed in court for the prosecution of

                                      3
the case and whether the suit can be stayed until Holesome is

released.   See Ballard v. Spradley, 557 F.2d 476 (5th Cir. 1977).

     For the reasons stated above, the district court’s order of

dismissal   is   vacated   and   the       case   is   remanded   for   further

proceedings consistent with this opinion.

     VACATED and REMANDED.




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