Peggy Marie Wham, Plaintiff, v. Robert Bayer; Janice Benzler; Robert Hildreth, Defendants-appellees, 119 F.3d 8 (9th Cir. 1997)

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US Court of Appeals for the Ninth Circuit - 119 F.3d 8 (9th Cir. 1997) Submitted July 14, 1997**Decided July 18, 1997

Before HUG, Chief Judge, KOZINSKI, and LEAVY, Circuit Judges.


MEMORANDUM* 

Peggy Marie Wham, a former Nevada state prisoner who was transferred to a Kentucky state prison, appeals pro se the dismissal of her 42 U.S.C. § 1983 civil rights action against Nevada prison officials. We remand this action for the district court to consider Wham's pending motion for reconsideration.

The district court dismissed Wham's action due to her failure to serve prison officials. Subsequent to the district court's dismissal of the action, the United States Marshal filed proof of service showing that prison officials had been served. Wham then filed a notice of appeal and a motion for reconsideration which were both docketed on the same day. The district court did not rule on the motion for reconsideration. Nevertheless, in certifying that Wham's appeal was taken in good faith, the district court noted that it might be inclined to grant Wham's motion for reconsideration but could not do so because it was divested of jurisdiction by Wham's filing of a notice of appeal.

Because the district court indicated that it might have granted Wham's motion for reconsideration and therefore vacated its dismissal of the action, we remand this action to the district court so that it may rule on Wham's motion for reconsideration.1 

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

Wham's motion for appointment of counsel is denied