
    David LAUER, Plaintiff-Appellant, v. DIRECTOR TEXAS DEPARTMENT OF CRIMINAL JUSTICE INSTITUTIONAL DIVISION; Barry Telford Unit; Unknown Stephens, Warden; Unknown Hudson, Warden; Unknown Rodeen, Warden; Unknown Odem, Captain; Unknown Miles, Lieutenant; Unknown Wisner, Lieutenant; Tia Range Lieutenant; Unknown Coleman, Sergeant; Unknown Delevan, Mail personnel; Unknown Sharp, Mail personnel; Unknown Ybarra, mail personnel; Unknown Rayburn, Mail personnel; Unknown Currie, mail room, Defendants-Appellees.
    
      No. 03-41061.
    United States Court of Appeals, Fifth Circuit.
    Feb. 27, 2004.
    David D. Lauer, Gatesville, TX, for Plaintiff-Appellant.
    Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
   PER CURIAM:

David Lauer, Texas prisoner # 1069082, appeals the dismissal of his 42 U.S.C. § 1983 suit pursuant to Fed. R. Civ. P. 41(b) for failure to comply with a court order requiring him to submit documentation verifying that he had exhausted his administrative remedies. Although the district court dismissed Lauer’s complaint without prejudice, Lauer would be barred by the limitations period from returning to federal court to challenge certain of the actions alleged in his complaint; therefore, the dismissal operated as a dismissal in part with prejudice and was appropriate only if Lauer’s failure to comply with the court’s order was the result of purposeful delay or contumacious conduct and the district court employed lesser sanctions before dismissal. See Long v. Simmons, 77 F.3d 878, 879-80 (5th Cir.1996). The record does not support such a determination, and we therefore hold that the Rule 41(b) dismissal was an abuse of discretion and VACATE the judgment of dismissal. See id. at 880.

Lauer has alleged that the defendants are in possession of documents evidencing the exhaustion of his administrative remedies and, further, that certain of his grievanees were not acted upon within the time provided the state for responding. We therefore REMAND for a finding whether Lauer exhausted his administrative remedies. See Powe v. Ennis, 177 F.3d 393, 394 (5th Cir.1999).

VACATED AND REMANDED; MOTION FOR APPOINTMENT OF COUNSEL DENIED. 
      
       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     