Peggy Marie Wham, Plaintiff, v. Robert Bayer; Janice Benzler; Robert Hildreth, Defendants-appellees, 119 F.3d 8 (9th Cir. 1997)

MEMORANDUM^* 

Peggy Marie Wham, a former Nevada state prisoner who was transferred to a Kentucky state prison, appeals pro se the dismissal of her 42 U.S.C. § 1983 civil rights action against Nevada prison officials. We remand this action for the district court to consider Wham's pending motion for reconsideration.

The district court dismissed Wham's action due to her failure to serve prison officials. Subsequent to the district court's dismissal of the action, the United States Marshal filed proof of service showing that prison officials had been served. Wham then filed a notice of appeal and a motion for reconsideration which were both docketed on the same day. The district court did not rule on the motion for reconsideration. Nevertheless, in certifying that Wham's appeal was taken in good faith, the district court noted that it might be inclined to grant Wham's motion for reconsideration but could not do so because it was divested of jurisdiction by Wham's filing of a notice of appeal.

Because the district court indicated that it might have granted Wham's motion for reconsideration and therefore vacated its dismissal of the action, we remand this action to the district court so that it may rule on Wham's motion for reconsideration.¹ 

REMANDED.