FILED
NOT FOR PUBLICATION MAR 15 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOHN ROBERT CLINE, No. 10-17058
Plaintiff - Appellant, D.C. No. 4:09-cv-00114-DCB
v.
MEMORANDUM *
DORA SCHRIRO; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted March 6, 2012 **
Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.
John Robert Cline, an Arizona state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate
indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.
*
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).
§ 1291. We review for abuse of discretion a district court’s dismissal for failure to
prosecute, Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447, 1451 (9th Cir.
1994), and we reverse and remand.
Although the district court did not abuse its discretion in requiring Cline to
sign an unaltered medical release, the district court abused its discretion when it
dismissed the case for failure to prosecute based on Cline’s delay in returning the
unaltered medical release to defendants. See id. at 1451 (listing factors to consider
in determining whether dismissal for failure to prosecute was an abuse of
discretion). Cline executed and mailed to defendants the unaltered release less
than forty days after the court’s deadline and without further order of the court and
thus did not unreasonably delay the proceedings. See id. (“In dismissing a case for
lack of prosecution, the court must find unreasonable delay.”). Further, there is no
indication in the record that this delay of less than forty days actually prejudiced
defendants. See id. at 1452-53; see also id. at 1454 (public policy favors
disposition of cases on the merits). Accordingly, we reverse the judgment and
remand for further proceedings.
The district court did not abuse its discretion in denying without prejudice
Cline’s request for counsel where Cline moved for appointment of counsel before
the complaint was served and failed to show exceptional circumstances. See
2 10-17058
Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (court may appoint counsel
only under exceptional circumstances).
REVERSED and REMANDED.
3 10-17058