FILED
NOT FOR PUBLICATION DEC 08 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY ALLEN FRANKLIN, No. 13-56576
Plaintiff - Appellant, D.C. No. 3:11-cv-01240-JAH-
BGS
v.
J. JIMENEZ, Lieutenant; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Submitted November 18, 2014**
Before: LEAVY, FISHER, and N.R. SMITH, Circuit Judges.
Gregory Allen Franklin, a California state prisoner, appeals pro se from the
district court’s order dismissing his 42 U.S.C. § 1983 action alleging constitutional
violations. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse
of discretion. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258 (9th Cir.
*
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).
2010). We reverse and remand.
Franklin’s motion, filed in the district court on February, 21, 2013, is most
properly treated as a motion for an extension of time to file a Second Amended
Complaint. The district court abused its discretion by denying Franklin’s motion,
because Franklin’s assertion that he had not received the district court’s order
dismissing his First Amended Complaint with leave to amend demonstrated that
his failure to file a Second Amended Complaint within 45 days was excusable. See
Fed. R. Civ. P. 6(b)(1)(B) (“When an act may or must be done within a specified
time, the court may, for good cause, extend the time on motion made after the time
has expired if the party failed to act because of excusable neglect.”); In re Veritas
Software Corp. Sec. Litig., 496 F.3d 962, 973 (9th Cir. 2007) (setting forth factors
a district court must consider to determine whether neglect is excusable); see also
Ahanchian, 624 F.3d at 1258-59 (noting that Rule 6(b), like all the Federal Rules
of Civil Procedure, is to be “liberally construed to effectuate the general purpose of
seeing that cases are tried on the merits” (citation and internal quotation marks
omitted)).
Accordingly, we remand for the district court to give Franklin an
opportunity to file a Second Amended Complaint.
REVERSED and REMANDED.
2 13-56576