William Mckinney, Plaintiff-appellant, v. Carol Ployhar, et al., Defendant-appellee, 959 F.2d 240 (9th Cir. 1992)

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U.S. Court of Appeals for the Ninth Circuit - 959 F.2d 240 (9th Cir. 1992)

Submitted April 8, 1992. *Decided April 10, 1992


Before HUG, O'SCANNLAIN and TROTT, Circuit Judges.


MEMORANDUM** 

William McKinney, a Nevada state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action without prejudice for failure to comply with a court order to file an opposition to the defendants' motion to dismiss. We review for an abuse of discretion, Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987), cert. denied, 488 U.S. 819 (1988), and we vacate and remand.

On November 9, 1989, McKinney filed a section 1983 complaint seeking money damages and injunctive relief. On October 11, 1990, the defendants filed a motion to dismiss.1  McKinney requested an extension of time to file his opposition, and the district court ordered him to file his opposition by November 30, 1990. After McKinney failed to file his opposition, the district court ordered him to file his opposition by January 5, 1991. After McKinney again failed to file his opposition, the district court ordered him to file his opposition by February 1, 1991 and warned him that failure to file the opposition would result in dismissal of the action. On February 11, 1991, McKinney filed his opposition and a motion to file a late pleading, and the district court granted the motion to file the late opposition. On February 19, 1991, the district court dismissed the action without prejudice for failure to file an opposition to the defendants' motion to dismiss.

When the district court dismissed the action without prejudice on February 19, 1991 for failure to file an opposition, it apparently overlooked its February 11, 1991 decision granting McKinney's motion to file his opposition. Because the February 11 and February 19 orders conflict, we remand to the district court to give it an opportunity to resolve the conflict and consider McKinney's opposition to the defendants' motion to dismiss.

VACATED and REMANDED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Although the defendants' motion sought dismissal under Fed. R. Civ. P. 12(b) (6) and summary judgment, the district court stated on January 14, 1991 that it would treat the motion as a Rule 12(b) (6) motion and ordered the defendants' affidavits stricken