dissenting.
REINHARDT, Circuit Judge.
I would hold that the district court abused its discretion when it dismissed the Lancaster’s entire action under Federal Rule of Civil Procedure 41(b). Involuntary dismissal is “so harsh a penalty” it should be used only to address “extreme circumstances.” Dahl v. City of Huntington, 84 F.3d 363, 366 (9th Cir.1996) (citations omitted). The minor “failure” at issue here was plaintiffs’ decision to silently stand by a sufficient complaint and not accept the magistrate judge’s “leave to amend” offer. Other circuits have questioned whether such conduct could even be classified as a “failure to comply with a court order.” See, e.g., Mann v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 488 F.2d 75, 76 (5th Cir.1973) (“Dismissal of a case for disobedience of a court order is an exceedingly harsh sanction.... Failure to amend a complaint after it has been dismissed with leave to amend is not such an extreme case of disobedience, if it is disobedience at all.”). Under the third factor, risk of prejudice to the defendant, such a minor violation should not be presumed to work to the defendant’s detriment, let alone to constitute such wilful disobedience of a court order as to warrant the forfeiture of plaintiffs rights.
Second, the district court should have considered the lesser sanction of simply dismissing the claims that had been dismissed with leave to amend instead of the whole action. See Opinion at 5 n. 1. This more appropriate remedy would have taken no additional time on the part of the *20district court, as it had already dismissed the only other claims in the complaint for failure to exhaust. Furthermore, this alternative course of action would have allowed this court to review whether those other dismissals for non-exhaustion were proper. Thus, I respectfully dissent.