FILED
NOT FOR PUBLICATION MAY 04 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MALIK JONES, No. 10-15106
Plaintiff - Appellant, D.C. No. 2:08-cv-00251-DAE-
KSC
v.
D. VANDERVILLE; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
David A. Ezra, District Judge, Presiding
Submitted April 20, 2011 **
Before: RYMER, THOMAS, and PAEZ, Circuit Judges.
California state prisoner Malik Jones appeals pro se from the district court’s
judgment dismissing his 42 U.S.C. § 1983 action under Federal Rule of Civil
Procedure 41(b). We have jurisdiction under 28 U.S.C. § 1291. We review for an
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
abuse of discretion. Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). We
vacate and remand.
Because the district court did not make explicit findings concerning the five
factors relevant to dismissal under Rule 41(b), we “review the record
independently to determine if the district court has abused its discretion.” Id. at
1260-61 (describing relevant factors).
The district court dismissed the action fewer than three weeks after the
amended complaint was due, while Jones awaited a ruling on his objections to the
magistrate judge’s orders. It did not consider any less drastic alternatives to
dismissal with prejudice, such as granting Jones additional time to file his amended
complaint, as he had requested. See 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). Moreover, there was
no prejudice to defendants, who had not yet been served. Under these
circumstances, the relevant factors did not warrant dismissal of Jones’s action. See
Ferdik, 963 F.2d at 1260-62 (dismissal with prejudice under Rule 41(b) “is a harsh
penalty and . . . should only be imposed in extreme circumstances”); cf.
Pagtalunan, 291 F.3d at 642-43 (affirming Rule 41(b) dismissal where delay was
almost four months and unreasonably prejudiced defendants).
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Accordingly, we vacate and remand for further proceedings.
Jones shall bear his own costs on appeal.
VACATED and REMANDED.
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