Leonard Houston, Plaintiff-appellant, v. Bobbie L. Rheed, Chief Deputy Warden; William N. Smith, Md;y. Young; A. Dymond, Sgt.; Huerta S. Garcia,defendants-appellees, 87 F.3d 1319 (9th Cir. 1996)

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U.S. Court of Appeals for the Ninth Circuit - 87 F.3d 1319 (9th Cir. 1996)

Submitted June 11, 1996. *Decided June 19, 1996

Before: CANBY, NOONAN, and LEAVY, Circuit Judges.


Leonard Houston, a California state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 civil rights action for failure to comply with a court order. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion, Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.), cert. denied, 506 U.S. 915 (1992), and we vacate and remand.

Where the district court does not explicitly consider the factors supporting dismissal of the action, we may independently review the record to determine whether the district court abused its discretion. See id. at 1261.

Having reviewed the record and considered the factors set forth in Ferdik, we conclude that the district court should not have dismissed the action without first warning Houston that failure to comply with the prior court order would result in dismissal of his action. Compare Johnson v. United States Dep't of the Treasury, 939 F.2d 820, 825-26 (9th Cir. 1991) (dismissal of action premature where district court failed to warn a pro se litigant that failure to comply would result in dismissal of action) with Ferdik, 963 F.2d at 1261 (dismissal of action proper where district court provided pro se litigant with numerous opportunities to comply and warned litigant that failure to comply would result in dismissal of action).

Accordingly, we vacate and remand for further proceedings.



The panel unanimously finds this case suitable for decision without oral argument. See 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