FILED
NOT FOR PUBLICATION AUG 02 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DEVONTE BERNARD HARRIS, No. 12-15721
Plaintiff - Appellant, D.C. No. 2:08-cv-01711-LDG
v.
MEMORANDUM *
KEITH HIGGINS; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lloyd D. George, District Judge, Presiding **
Submitted July 24, 2013 ***
Before: ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.
On February 2, 2013, the district court certified that this appeal is not taken
in good faith and has revoked appellant’s in forma pauperis status. Our review of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Lloyd D. George, United States District Judge for the
District of Nevada, sitting by designation.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the record indicates that appellant is entitled to in forma pauperis status for this
appeal. See 28 U.S.C. § 1915(a).
California state prisoner Devonte Bernard Harris appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging
retaliation and violations of his Eighth Amendment rights. We have jurisdiction
under 28 U.S.C. § 1291. We review for an abuse of discretion the dismissal of an
action for failure to comply with an order to file an amended complaint. Ferdik v.
Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). We vacate and remand.
The district court did not make explicit findings concerning the five factors
relevant to dismissal under Federal Rule of Civil Procedure 41(b). Id. at 1260-61
(describing relevant factors). We may, however, “review the record independently
to determine if the district court has abused its discretion.” Id. at 1261.
Our review shows that the “extreme circumstances” justifying dismissal with
prejudice under Rule 41 may not have been present. Id. at 1260 (dismissal with
prejudice under Rule 41(b) “is a harsh penalty and . . . should only be imposed in
extreme circumstances”); see also Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th
Cir. 2002) (granting leave to amend and warning of dismissal for failure to comply
did not constitute consideration of less drastic alternatives). For example, the order
dismissing Harris’s action states that Harris did not provide any reason in his
2 12-15721
motion for extension of time for his failure to timely file that motion. His motion,
however, did provide a reason.
Accordingly, because it is not clear from the record whether dismissal was
appropriate, we vacate and remand for further consideration, including whether,
under the relevant factors, dismissal with prejudice is warranted.
Harris’s pending motions are denied as unnecessary.
VACATED and REMANDED.
3 12-15721