                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit              December 5, 2003

                                                        Charles R. Fulbruge III
                                                                Clerk
                            No. 03-30228
                          Summary Calendar


                      CHRIS L. AUGUSTINE, SR.,

                        Plaintiff-Appellant,


                               VERSUS


         AVOYELLES PROGRESS ACTION COMMITTEE, INC, et al.

                       Defendants-Appellees.




           Appeal from the United States District Court
               For the Western District of Louisiana
                            (01-CV-1095)


Before BARKSDALE, EMILO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Plaintiff, Chris L. Augustine, brings this appeal from the

district court’s dismissal of his case against defendants for lack

of prosecution pursuant to Western District Local Rule of Civil

Procedure 41.3W.   We remand this case back to the district court to



     *
     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this opinion should not be published and is not precedent except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.

                                  1
consider and make express findings on the issue of whether lesser

sanctions than dismissal would have accomplished the district

court’s purpose of expediting prosecution of the case.

      On June 14, 2001, the plaintiff filed a complaint against the

defendants alleging both state and federal claims.             The merits of

these claims are not before us now.         Defendants did not respond to

this complaint, and the clerk ordered a notice of default on August

20, 2001.   The court rejected defendants’ motion to set aside the

default notice on October 17, 2001.          No other formal action took

place in the case after this point.

      On February 13, 2002, the clerk’s office issued a “Notice of

Intent to Dismiss for Failure to Prosecute” pursuant to Local Rule

41.3W.   This notice gave the plaintiff ten days to provide good

cause why prosecution of the case had not gone forward or else be

subject to dismissal.    The plaintiff alleges that, upon receipt of

this notice, he communicated by telephone with the clerk’s office

and explained to them that he was engaging in informal discovery.

He further alleges that the clerk’s office told him that the Notice

would be withdrawn.     The Notice was never withdrawn.

      On August 7, 2002, the Chief Deputy Clerk entered a judgment

of   dismissal.   The    plaintiff       filed   a   motion   to   vacate   the

dismissal, which the court denied on February 12, 2003.                     The

plaintiff brings this appeal.

      “We review a dismissal with prejudice for failure to prosecute



                                     2
for abuse of discretion.”1        Berry, Jr. v. Cignarsi-Cigna, 975 F.2d

1188, 1191 (5th Cir. 1992) (internal citations omitted).            We will

uphold dismissals with prejudice for failure to prosecute only

when, inter alia, “the district court has expressly determined that

lesser sanctions would not prompt diligent prosecution, or the

record shows that the district court employed lesser sanctions that

proved to be futile.”        Id. (citing Price v. McGlathery, 729 F.2d

472, 474 (5th Cir. 1986); Callip v. Harris County Child Welfare

Dept., 757 F.2d 1513, 1519-21 (5th Cir. 1985); Boudwin v. Graystone

Insurance Co. Ltd., 756 F.2d 399, 401 (5th Cir. 1985); Morris v.

Ocean Systems, 730 F.2d 248, 252 (5th Cir. 1984)).

     In this case, the district court did not make an express

determination on the record that it considered lesser sanctions and

found    them   inadequate   to   prompt   diligent   prosecution   by   the

plaintiff.      We cannot determine whether the district court abused

its discretion without these findings. Accordingly, we REVERSE the

judgment of the district court and REMAND for a determination of

whether lesser sanctions would prompt diligent prosecution of the

case by the plaintiff.       See Boudwin, 756 F.2d at 400 (remanding a

     1
     It is not entirely clear whether this dismissal is with or
without prejudice. However, “[w]here further litigation of a
claim will be time-barred, a dismissal without prejudice is no
less severe a sanction than a dismissal with prejudice, and the
same standard of review is used.” Berry, 975 F.2d at 1191. We
cannot determine which, if any, of the plaintiff’s claims are
time-barred based on this record. On remand, the court should
determine whether this dismissal should be treated as one with or
without prejudice.

                                      3
case back to the district court and noting that “consideration [of

lesser sanctions], and the court’s finding that lesser sanctions

would be inadequate, must be spread upon the record . . . .”);

Hornbuckle v. Arco Oil & Gas Co., 732 F.2d 1233, 1237 (5th Cir.

1984) (“When a district court dismisses an action for prejudice for

counsel’s failure to prosecute, such findings of fact are essential

for our consideration of the inevitable argument that the dismissal

was an abuse of its discretion.”).



REVERSED and REMANDED for proceedings consistent with this opinion.




                                 4
