Unpublished Disposition, 886 F.2d 1319 (9th Cir. 1988)

MEMORANDUM^** 

Michael Henry Ferdik, an Arizona state prisoner, filed a Sec. 1983 complaint in August 1987. He named as defendants prison officials who are alleged to violate disciplinary rules of the institution and who retaliated against him for filing lawsuits. His complaint was later amended to allege that the prison officials used sexual abuse and other means to intimidate him into withdrawal of his litigation.

In October of that year, the district court directed that the amended complaint and summons be served at government expense. It appears that the court clerk sent the appropriate forms to Ferdik with instructions by which to effect service. This was not accomplished by December 1987, at which time the court ordered Ferdik to act within 15 days and advise the court whether he wished to proceed with the action. The order was not complied with and the district court dismissed Ferdik's action on January 11, 1988 for failure to comply with the court's order.

On February 1, 1988 Ferdik filed a "motion for appeal of final judgment." He said that the defendants had kept his mail from him and this caused him to miss the court's deadline. His motion for reconsideration was denied. We construe Ferdik's document, filed by a pro se litigant, as a notice of appeal. It was timely filed. Wilborn v. Escalderon, 789 F.2d 1328, 1330 (9th Cir. 1986).

While a district court may dismiss a complaint for failure to comply with a court order, Fed. R. Civ. P. 41(b), we review such an order for an abuse of discretion. Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987), cert. denied, 109 S. Ct. 59 (1988).

Because the district court did not explicitly consider the five dismissal factors set forth in Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir.), cert. denied, 479 U.S. 829 (1986), we must review the record independently to determine whether the dismissal was an abuse of discretion. Malone, 833 F.2d at 130.

The court dismissed the action after Ferdik had failed to comply with the court's prior order. However, no trial date had yet been set and there was no indication that Ferdik's conduct had impeded the resolution of the case, nor was there any indication that there was prejudice to the defendants or an impairment of their ability to go to trial.

Less drastic alternatives should have been considered before the action was dismissed. Dismissal without prejudice might have been appropriate. The court might have warned Ferdik that failure to act within 15 days would result in a dismissal.

It was error to dismiss for failure to comply with the court order without exploring less drastic alternatives. The judgment is REVERSED and we need not reach the merits of Ferdik's motion for reconsideration.