Unpublished Disposition, 874 F.2d 816 (9th Cir. 1988)

MEMORANDUM^** 

Reginald A. Kaenel (Kaenel) pro se appeals the district court's dismissal of his complaint for failure to prosecute this case. Kaenel's complaint alleged that the Commissioner of Internal Revenue (Commissioner) violated Kaenel's constitutional rights. The judgment is reversed and remanded. The district court erred in dismissing this case because it based its decision on Kaenel's failure to demonstrate why this case should not be dismissed at the show cause hearing and the record fails to indicate that such a hearing was scheduled.

STATEMENT OF FACTS

Reginald A. Kaenel (Kaenel) filed this action in 1983 alleging that the Commissioner of Internal Revenue (Commissioner) violated his constitutional rights in connection with the collection of Kaenel's federal tax liabilities for 1978.

In 1985, the district court dismissed the action without leave to amend on the ground that the court lacked subject matter jurisdiction on Kaenel's claims for injunctive relief, a tax refund and damages against the United States and that on the remaining issues Kaenel failed to state a claim on which relief could be granted. The court also stated that it could not ascertain from the amended complaint whether anyone had inflicted injuries to Kaenel. Kaenel timely filed a notice of appeal from the district court's dismissal on September 3, 1985. On appeal the government conceded that if liberally construed, Kaenel's complaint had stated a viable claim regarding whether the Commissioner had sent Kaenel a statutory notice of deficiency for 1978. Because the government's motion to dismiss and the district court's order did not address this issue this court affirmed in part and reversed and remanded in part the district court's decision to establish whether the Commissioner had mailed a notice of deficiency to Kaenel.

On remand, the district court on December 3, 1987, issued an order scheduling a status conference for December 21, 1987. Kaenel failed to appear at this status conference and on January 13, 1988 the district court dismissed this case for lack of prosecution. The court based its decision on Kaenel's failure to show cause why this action should not be dismissed at the December 21, 1987 show cause hearing. On January 14, 1987, Kaenel responded to the district court's December 3, 1986 order and argued that he did not receive notice of this order until the second week of January because his mail was being forwarded. Kaenel timely appeals.

The district court's dismissal order stated that Kaenel failed to demonstrate why this case should not be dismissed for failure to prosecute at the show cause hearing. However, the record fails to indicate that such a hearing was scheduled. Accordingly, we reverse and remand this case to allow the district court to issue Kaenel an order to show cause why this case should not be dismissed for failure to prosecute.

REVERSED and REMANDED.