Unpublished Disposition, 914 F.2d 261 (9th Cir. 1990)

MEMORANDUM^** 

In reviewing the dismissal of a suit for lack of prosecution, we consider the party's diligence, the court's need to control its docket, the danger of prejudice to the party suffering the delay, the existence of a warning to the party causing the delay and the availability of other sanctions. Hamilton v. Neptune Orient Lines, Ltd., 811 F.2d 498, 499 (9th Cir. 1987).

Here the consequences of the dismissal were severe: When the court dismissed the suit it also dissolved a preliminary injunction that had stopped the prison from enforcing allegedly unconstitutional policies. Thus, the dismissal, even though it was without prejudice, did not merely set plaintiff's suit back a few months; it deprived him of the preliminary injunction, subjecting him to policies that may have violated his free exercise rights. Plaintiff's transgressions--failure to timely respond to the motions to dismiss and failure to initiate the drafting of pretrial orders as required by local rule--were his first; the suit had been pending for only four months and the court had issued no warnings.

Because the court chose a sanction with such drastic consequences without warning plaintiff or considering alternatives, we conclude that it abused its discretion.

REVERSED.