                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 10, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-41293
                         Summary Calendar


PAUL MINIX,

                                    Plaintiff-Appellant,

versus

UNIT MAJOR UP HAYNES; LIEUTENANT UP PITTS; SERGEANT UP RAMARIZ;
CORRECTIONAL OFFICER UP WILLIAM; MAILROOM SUPERVISOR L. SMITH; UP
SMITH, Gang Intelligence Officer,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 3:03-CV-115
                      --------------------

Before DeMOSS, STEWART and PRADO, Circuit Judges.

PER CURIAM:*

     Paul Minix, Texas prisoner # 638154, filed the instant

§ 1983 suit against several officials at the facility where he

was incarcerated to seek redress for alleged acts of retaliation,

discrimination, and harassment as well as purportedly false

disciplinary charges.   The district court dismissed the suit

pursuant to FED. R. CIV. P. 41(b) for want of prosecution.      Minix

argues that he did his best to comply with 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this opinion should not be published and is not precedent except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.
                           No. 06-41293
                                -2-

orders and the dismissal was not warranted.   Minix also moves

this court for copies of records and an evidentiary hearing.

     We review the district court’s dismissal, which operates as

one with prejudice due to the pertinent statute of limitations,

for an abuse of discretion.   Long v. Simmons, 77 F.3d 878, 880

(5th Cir. 1996); McNeal v. Papasan, 842 F.2d 787, 789-90 (5th

Cir. 1988).   When reviewing a dismissal with prejudice under Rule

41(b), we will conclude that there has been an abuse of

discretion unless there is a clear record of delay or

contumacious conduct by the plaintiff and the district court has

expressly determined that milder sanctions would not encourage

diligent prosecution, or the record shows that the district court

employed lesser sanctions that proved to be futile.     Berry v.

CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992).

     The dismissal was based on Minix’s failure to follow a court

order.   The district court did not consider lesser sanctions

before dismissing Minix’s suit.   The district court abused its

discretion in dismissing Minix’s suit.    See Berry, 975 F.2d at

1191 & n.6.   Consequently, the judgment of the district court is

VACATED, and this case is REMANDED for further proceedings.     All

outstanding motions are DENIED.
