                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 30, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-40297
                         Summary Calendar



CHARLES CLAY WARNER, JR.,

                                    Plaintiff-Appellant,

versus

ZELDA G. GLASS, Individual Capacity; DIRK GRAY,
Individual Capacity; FRANK WARNER, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE - INSTITUTIONAL DIVISION COMPANY
DEPARTMENTS,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                        USDC No. 5:03-CV-15
                       --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Charles Clay Warner, Jr., Texas state prisoner #502362,

appeals the district court’s dismissal without prejudice of his

42 U.S.C. § 1983 complaint for failure to pay the partial filing

fee assessed by the magistrate judge.   Warner argues that the

district court abused its discretion in dismissing the complaint

because the prison custodian of his trust account failed to

perform its obligation to make the payment.   He further argues

     *
       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this opinion should not be published and is not precedent except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. 04-40297
                                  -2-

that the district court did not give him an adequate opportunity

to comply with the requirement.

     Although the district court dismissed Warner’s suit without

prejudice, he is effectively barred from refiling by the two-year

statute of limitations.    See Burrell v. Newsome, 883 F.2d 416,

418 (5th Cir. 1989).

     The record does not show that Warner’s failure was the

result of contumacious behavior or an attempt to delay the

proceedings.    See McNeal v. Papsan, 842 F.2d 787, 790-92 (5th

Cir. 1988).    The record also does not show that the court

considered lesser sanctions before dismissing Warner’s lawsuit.

See Long v. Simmons, 77 F.3d 878, 880 (5th Cir. 1996).

     The judgment of the district court dismissing Warner’s

complaint is VACATED, and the case is REMANDED for further

proceedings.    Warner is cautioned that this opinion does not

excuse him from compliance with the orders issued by the district

court if the court elects to reinstate those orders upon remand.

Warner is further cautioned that a failure to comply with the

district court’s orders in the future may result in dismissal of

his lawsuit.

     VACATED AND REMANDED.
