Unpublished Disposition, 922 F.2d 844 (9th Cir. 1988)

MEMORANDUM^** 

Michael Henry Ferdik, an Arizona state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action under Fed. R. Civ. P. 41(b). We review for an abuse of discretion, Hernandez v. Whiting, 881 F.2d 768, 770 (9th Cir. 1989), and we affirm.

Under Rule 41(b), an action may be dismissed " [f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court." Because the sanction of dismissal is such a harsh penalty, the district court must weigh five factors before imposing dismissal: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987), cert. denied, 488 U.S. 819 (1988). If the district court does not explicitly consider these factors, we review the entire record to determine whether the order of dismissal was an abuse of discretion.

After Ferdik filed his original complaint with the district court, the court notified him by order entered August 4, 1988 that his complaint failed to state a claim and gave him thirty days to file an amended complaint. In its order, the district court advised Ferdik that failure to file an amended complaint would result in dismissal of his action with prejudice.

On four occasions, Ferdik attempted to file an amended complaint, and the district court returned the complaint to him unfiled for failure to comply with local rules requiring two copies of the complaint to be filed. Rather than complying with the court rules, Ferdik notified the district court judge that he was "obstructing justice and placing unnecessary restrictions" upon him. Thereafter, the district court gave him one final opportunity to submit two copies of the complaint before dismissing the action. Under the Malone test, the district court did not abuse its discretion in dismissing Ferdik's action. See 833 F.2d at 132.

AFFIRMED.