                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                      August 24, 2004

                                                               Charles R. Fulbruge III
                               No. 02-61063                            Clerk
                             Summary Calendar


                           EZELL WASH; ET AL.,

                                                               Plaintiffs,

        EZELL WASH; KENNETH DENNIS; DESMOND EARL PHILLIPS;
   BOBBY CALDWELL; JIMMY POWELL; ROBERT PRICE; GLENDALE SONES;
                  RICHARD SIMS, JR.; JAMES REED,

                                                  Plaintiffs-Appellants,

                                  versus

   ROBERT JOHNSON, Commissioner; JAMES ANDERSON; WALTER BOOKER;
    W. L. HOLMAN; ROBERT ARMSTRONG; GENE CROCKER; EARL JACKSON;
     JESSIE STREETER; CHRISTOPHER EPPS; LARRY KEYS; PAMELY LEE;
CHARLES THOMAS; GLENN ADAMS; WILLIE WALKER; CASE MANAGER JACKSON;
     SAM WEBB; JACQILYN MAXWELL; MAUD IRBY; JOE CONNERS; FRANK
  GRAMMAR; LARRY HARDY; JOHN DOE(S), Liability Surities/Bonding
                    Companies of All Defendants,

                                                    Defendants-Appellees.


            Appeal from the United States District Court
              for the Northern District of Mississippi
                      USDC No. 4:00-CV-315-P-D


Before HIGGINBOTHAM, JONES, and BARKSDALE, Circuit Judges.

PER CURIAM:*

           The appellants, pro se plaintiffs in a civil rights suit

filed under 42 U.S.C. § 1983, appeal the dismissal of their suit



     *
            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opinion should not be published and is not precedent except under the limited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.
under FED. R. CIV. P. 41(b) for failure to comply with an order of

the court.        The appellants’ argument that the appellees’ brief

should be stricken is without merit inasmuch as the brief was

mailed prior to the deadline and conformed with FED. R. APP. P. 28.

            Rule 41(b) authorizes the sua sponte dismissal with

prejudice    of    an    action   for   the    failure   of   the   plaintiff     to

prosecute.        Rule   41(b)    dismissals     are   reviewed     for   abuse   of

discretion.       Dorsey v. Scott Wetzel Servs., 84 F.3d 170, 171 (5th

Cir. 1996).       Rule 41(b) dismissals, however, are affirmed “only

upon a showing of a clear record of delay or contumacious conduct

by the plaintiff, . . . and where lesser sanctions would not serve

the best interest of justice.”           Id.

            The instant case does not reveal a clear record of delay

or contumacious conduct on the part of the pro se plaintiffs.                 Soon

after the district court stayed discovery pending resolution of the

defendants’ qualified immunity defenses, the plaintiffs attempted

to address those defenses by pointing to their fact-specific

complaint and amended complaint.                Additionally, prior to the

court’s January 4, 2002, deadline, the plaintiffs sought to declare

the   defendants’        third,   fifth,      and   sixth     immunity    defenses

inapplicable as a matter of law.              In that filing, the plaintiffs

explained that the only remaining affirmative defense was the

defendants’ claim to qualified immunity under federal law and that

they needed access to their legal files, which the defendants had

denied, to prepare such a response.

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           The plaintiffs’ June 19, 2002, request for more time was

also filed prior to the district court’s July 3, 2002, deadline.

The plaintiffs iterated that they needed their legal files to

comply with the court’s order to file a reply to the defendants’

immunity defenses.      Thus, although the plaintiffs did not file the

reply ordered by the district court by the deadlines that the

district court had extended to them, they filed pleadings prior to

the deadlines explaining why they were unable to do so.

           As noted above, this court affirms Rule 41(b) dismissals

only when lesser sanctions would not serve the best interest of

justice.       Dorsey, 84 F.3d at 171.           The district court in the

instant case, as a lesser sanction, could have simply denied the

plaintiffs’ request for an extension of time to file the reply

ordered by the district court pursuant to Schultea v. Wood, 47 F.3d

1427,   1434    (5th   Cir.   1995)(en       banc),    without    dismissing     the

plaintiffs’ complaint.

           Additionally,       in   determining         whether    to   affirm     a

Rule 41(b) dismissal, this court looks to the degree of actual

prejudice to the defendant arising from the plaintiff’s failure to

comply with a court order.       Rogers v. Kroger Co., 669 F.2d 317, 320

& n.5 (5th Cir. 1982); see also Pardee v. Moses, 605 F.2d 865, 867

(5th Cir. 1979).        In this case, the plaintiffs’ complaint and

amended complaints are fact-specific as to how they believe they

were harmed by the defendants’ conduct; whether the pleadings meet

the   heightened    pleading    requirements          that   Schultea   sought    to

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enforce, and whether they will suffice to respond to the district

court’s order, have yet to be decided.

            In light of the plaintiffs’ efforts to address the

district court’s order to file a Schultea reply, the availability

of a lesser sanction, and the lack of prejudice sustained by the

defendants, the district court’s Rule 41(b) dismissal is VACATED,

and   the   case   is   REMANDED   to   the   district   court   for   further

proceedings.

            The motion of Gary Moore asking this court to reconsider

and vacate the dismissal of his appeal for his failure to pay the

filing fee in full is DENIED.

            VACATED and REMANDED; MOTION DENIED.




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