                  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opinion should not be published and is not precedent except under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.




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