FILED
NOT FOR PUBLICATION MAY 25 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MICHAEL LENOIR SMITH, No. 11-15442
Plaintiff - Appellant, D.C. No. 1:07-cv-01547-SRB
v.
MEMORANDUM *
ARNOLD SCHWARZENEGGAR,
Governor; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Susan R. Bolton, District Judge, Presiding **
Submitted May 15, 2012 ***
Before: CANBY, GRABER, and M. SMITH, Circuit Judges.
California state prisoner Michael Lenoir Smith appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action without prejudice
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
for failure to comply with a court order. We review for an abuse of discretion,
Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992), and we reverse and
remand.
The district court dismissed for failure to comply with its order requiring
Smith to return within thirty days the Notice of Submission of Documents and the
documents necessary for service of the summons and complaint. However,
Smith’s motion to stay proceedings shows that Smith was unable to file these
documents within the time limit for reasons beyond his control, and that he
attempted to alert the court to his situation at least twice prior to dismissal.
Because the district court failed to consider the reasons for Smith’s delay or
explore less harsh alternatives before dismissing, we reverse and remand for
further proceedings. See Pagtalunan v. Galaza, 291 F.3d 639, 642-43 & n.4 (9th
Cir. 2002) (listing factors to consider before dismissing for failure to comply with
a court order and explaining that less drastic alternatives must be pursued after
disobedience); Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir. 1992) (reversing
dismissal where the case did not “present the egregious circumstances, or the
court’s use of less drastic measures prior to dismissal”).
REVERSED and REMANDED.
2 11-15442