Jim Ferguson v. CDC, et al, No. 09-15299 (9th Cir. 2010)

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FILED NOV 01 2010 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT JIM FERGUSON, No. 09-15299 Plaintiff - Appellant, D.C. No. 2:06-cv-01301-MCEKJM v. CALIFORNIA DEPARTMENT OF CORRECTIONS; et al., MEMORANDUM * Defendants - Appellees. Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding Submitted October 19, 2010 ** Before: O SCANNLAIN, LEAVY, and TALLMAN, Circuit Judges. Jim Ferguson, a former California state prisoner, appeals pro se from the district court s order dismissing his action for violating a local rule requiring that a * 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). 09-15299 pro se litigant keep the court apprised of his current address. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion, Eldridge v. Block, 832 F.2d 1132, 1137-38 (9th Cir. 1987), and we reverse and remand. Although service of orders on Ferguson attempted via United States Mail inexplicably were returned to the district court as undeliverable, the record shows that Ferguson had not changed his address. Moreover, there is no indication that the court considered sanctions less drastic than dismissal or that the court warned Ferguson that dismissal was imminent. The circumstances of this case do not justify dismissal. See id. at 1137 (sanctioned party arguably complied with court s order and local rule, and if court concluded otherwise it should have granted him an extension of time in which to comply); see also Hernandez v. City of El Monte, 138 F.3d 393, 400 (9th Cir. 1998) (reversing dismissal where less drastic sanctions were not considered). REVERSED and REMANDED. 2 09-15299

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