Unpublished Disposition, 869 F.2d 1498 (9th Cir. 1987)

MEMORANDUM^** 

Arthur Lee Smythe appeals pro se the district court's dismissal for lack of prosecution of his civil rights action against members of the Oregon State Board of Parole.

In his complaint filed March 12, 1987, appellant alleges that members of the Board of Parole imposed a minimum sentence upon him in violation of its statutory powers. He sought relief in the form of money damages. The Board answered denying Smythe's allegations. On April 29, 1987, the magistrate ordered Smythe to file a narrative statement of the facts by July 5, 1987. On July 1, 1987, appellant moved for summary judgment on the grounds that there were no material facts in dispute. He did not, however, file a narrative statement. On July 7, 1987, the magistrate ordered appellant to show cause by July 25, 1987, why the complaint should not be dismissed for lack of prosecution.

On August 11, 1987, the court ordered that appellant's motion for summary judgment be denied. On August 28, 1987, after the Parole Board had filed a motion for summary judgment, the magistrate issued a report and recommendation for dismissal of the action for failure to prosecute. The report noted that appellant had not responded to the order to show cause by the July 25, 1987 deadline. The district court adopted the magistrate's findings and dismissed the action.

The district court must weigh the following factors to determine whether a case should be dismissed for lack of prosecution: (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 Service, 833 F.2d 128, 130 (9th Cir. 1987), cert. denied, --- U.S. ----, 109 S. Ct. 59 (1988); Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984), cert. denied, 470 U.S. 1007 (1985). Absent specific findings by the district court to show that it considered these factors, this court reviews the record independently to determine whether the district court abused its discretion. Henderson, supra, at 1424.

An independent review of the record in this case supports the district court's order of dismissal. Here, the magistrate's explicit warning of July 7, 1987 that if Smythe did not take action in his case by July 25, 1987 the magistrate would recommend dismissal for lack of prosecution satisfied any requirement for consideration of less drastic alternatives. See Henderson, supra, at 1424; Malone, supra, at 132-33.

We conclude that the district court did not abuse its discretion in dismissing appellant's action for lack of prosecution. See Henderson, supra, at 1425.

JUDGMENT AFFIRMED.