                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT

                             _______________

                               No. 95-20880

                            (Summary Calendar)
                              _______________


                 MICHAEL BOHANNAN,

                                         Plaintiff-Appellant,

                 versus

                 TEXAS    DEPARTMENT    OF   CRIMINAL
                 JUSTICE,   INSTITUTIONAL   DIVISION;
                 JAMES    COLLINS;    WAYNE    SCOTT,
                 DIRECTOR,    TEXAS   DEPARTMENT   OF
                 CRIMINAL    JUSTICE,   INSTITUTIONAL
                 DIVISION; SHERRY BROWN; FRANK HOKE;
                 BRUCE AUGUST; JESSE R ROLAN,

                                         Defendants-Appellees.


          _______________________________________________

            Appeal from the United States District Court
                 For the Southern District of Texas
                           (CA-H-95-1435)
          _______________________________________________
                            April 5, 1996

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Plaintiff    Michael    Bohannan   appeals    the   district   court's

dismissal with prejudice of his pro se and in forma pauperis § 1983

civil rights claim.     We vacate the district court’s dismissal and

remand.



     *
            Pursuant to Local Rule 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4.
                                      I

      Following the revocation of his mandatory supervised release,

Bohannan was incarcerated at the Texas Department of Criminal

Justice's San Saba facility.         Bohannan brought two petitions for

writs of habeas corpus, both of which were denied.            Citing the San

Saba facility's inadequate legal resources, Bohannan filed a pro se

and in forma pauperis civil rights complaint, pursuant to 42 U.S.C.

§ 1983, alleging that he had been denied meaningful access to the

courts while preparing his habeas petitions.          The magistrate judge

ordered Bohannan to furnish a more definite statement of the facts

underlying his claim.        After Bohannan responded, the magistrate

judge issued a second order for a more definite statement, and

stated that Bohannan's failure to respond within thirty days "may

result in dismissal" of his suit.          That same day, Bohannan filed a

notice of change of address that referenced his new mailing address

in Beaumont, Texas.      According to a docket sheet entry dated one

week later, the second order for a more definite statement was

returned "undeliverable" and was "re-mailed to the address in

file."    After thirty two days without receiving a response from

Bohannan, the district court entered an order dismissing Bohannan's

§ 1983 claim with prejudice.1         Bohannan then filed a motion for

relief from the district court's order, claiming that his failure




      1
            The district court's order of dismissal does not state whether the
suit is dismissed with or without prejudice. However, unless an involuntary
order of dismissal specifies that it is without prejudice, the dismissal
"operates as an adjudication upon the merits." FED. R. CIV. P. 41(b); Callip v.
Harris County Child Welfare Dept., 757 F.2d 1513, 1519 (5th Cir. 1985).

                                     -2-
to respond was due to "excusable neglect."             The district court

denied his motion.        Bohannan filed a timely notice of appeal.

                                    II

     The district court dismissed Bohannan's action because he

failed to respond to the second order for a more definite statement

within the prescribed time. Rule 41(b) authorizes a district court

to dismiss sua sponte an action for failure to prosecute.             FED. R.

CIV. P. 41(b).    We review a Rule 41(b) dismissal with prejudice for

abuse of discretion.         Berry v. Cigna/RSI-Cigna, 975 F.2d 1188,

1190-91 (5th Cir. 1992).         This Court has previously noted that

dismissal with prejudice for failure to prosecute is an extreme and

harsh sanction.     Id.    Dismissal with prejudice is appropriate only

when there is a clear record of delay or contumacious conduct by

the plaintiff, and the district court has expressly determined that

lesser sanctions would not serve the best interests of justice.

Id. at 1191.     The intentional delay should be longer than just a

few months and must be characterized by "significant periods of

inactivity."     McNeal v. B.H. Papasan, 842 F.2d 787, 791 (5th Cir.

1988) (internal quotation marks omitted); see also Burden, 644 F.2d

at 505 (finding an abuse of discretion where the plaintiff's

failure to comply with the court order was merely negligent and not

intentional).2




      2
            We also examine the record for the presence of the following
aggravating factors: (1) delay attributable directly to the plaintiff, rather
than his attorney; (2) actual prejudice to the defendant; and (3) delay caused
by intentional conduct. Berry, 975 F.2d at 1191.

                                     -3-
    Having reviewed the record, we find no clear evidence of delay

or contumacious conduct.         Only thirty-two days elapsed from the

date the second order for a more definite statement was entered to

the date of dismissal.        Until that time, Bohannan had diligently

pursued his claim, complying in a timely manner with the court's

initial order for a more definite statement. Bohannan notified the

district court of his new address prior to the second order being

remailed.       We are unable to determine from the record whether

Bohannan received the second order or whether it was even sent to

the correct address.        However, even if we assume that Bohannan did

receive the second order, there is no evidence in the record that

he intended to delay the proceedings. Compare Burden v. Yates, 644

F.2d 503, 504-05 (5th Cir. 1981) (finding no clear record of delay

or contumacious conduct even though plaintiff failed to file three

documents within court-imposed deadlines) with Callip v. Harris

County Child Welfare Dept., 757 F.2d 1513, 1521 (5th Cir. 1985)

(finding a clear record of delay and contumacious conduct after

plaintiff violated nine deadlines imposed by court orders or rules

of procedure).3     Moreover, the record does not establish that the

district court expressly determined whether lesser sanctions, such

as a fine or dismissal without prejudice, would be sufficient to

encourage diligent prosecution in this case.           See Callip, 757 F.2d

at 1521 (holding that dismissal with prejudice is not appropriate

unless    the    district    court   expressly     considered     alternative


    3
            There is also no evidence in the record that the delay prejudiced the
defendants in this case.

                                      -4-
sanctions).    We therefore conclude that the district court abused

its   discretion     in   dismissing     Bohannan's     §   1983   suit    with

prejudice.4

                                      III

        For the foregoing reasons, we VACATE the district court's

dismissal and REMAND for further proceedings.




     4
            Bohannan also appeals from the district court's denial of his motion
for relief from the court's dismissal. Because we find that the district court
abused its discretion in dismissing his § 1983 suit, we do not need to reach this
claim.

                                      -5-
