FILED
NOT FOR PUBLICATION NOV 19 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ARTHUR J. WHEELER, No. 11-16486
Plaintiff - Appellant, D.C. No. 2:10-cv-00866-GMN-
PAL
v.
TERRIBLE HERBST INC., MEMORANDUM *
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, District Judge, Presiding
Submitted November 13, 2012 **
Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.
Arthur J. Wheeler appeals pro se from the district court’s judgment
dismissing his Title VII action alleging racial discrimination and retaliation. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s
*
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).
dismissal for failure to state a claim. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th
Cir. 2005). We review for an abuse of discretion a dismissal for failure to comply
with a court order or a local rule. Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th
Cir. 2002); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). We
reverse and remand.
To the extent that the district court dismissed Wheeler’s action for failure to
state a claim, the district court abused its discretion by dismissing Wheeler’s action
with prejudice and without an opportunity to amend because Wheeler was
proceeding pro se, he indicated that he had recently obtained counsel, and it is not
clear that his complaint could not be cured by amendment. See Flowers v. First
Hawaiian Bank, 295 F.3d 966, 976 (9th Cir. 2002) (noting standard of review and
that this court is “very cautious in approving a district court’s decision to deny pro
se litigants leave to amend”).
To the extent that the district court dismissed Wheeler’s action with
prejudice for failure to comply with a court order or a local rule, the district court
abused its discretion because the court failed to consider less drastic alternatives.
See Pagtalunan, 291 F.3d at 642-43 (listing factors to consider before dismissing
for failure to comply with a court order and explaining that warning of dismissal
for failure to comply prior to disobedience of the court order did not constitute
2 11-16486
consideration of less drastic alternatives); Ferdik v. Bonzelet, 963 F.2d 1258, 1260
(9th Cir. 1992) (“[D]ismissal is a harsh penalty and, therefore, it should only be
imposed in extreme circumstances.”). Moreover, Wheeler’s violations, such as
filing his pro se opposition to the motion to dismiss five days late, did not
prejudice defendant or impede the court’s ability to manage its docket. See
Ghazali, 46 F.3d at 53 (listing factors to consider before dismissing for failure to
comply with a local rule); Malone v. U.S. Postal Serv., 833 F.2d 128, 131 (9th Cir.
1987) (“In determining whether a defendant has been prejudiced, we examine
whether the plaintiff’s actions impair the defendant’s ability to go to trial or
threaten to interfere with the rightful decision of the case.”).
Accordingly, we reverse and remand for further proceedings consistent with
our disposition.
REVERSED and REMANDED.
3 11-16486