JOHN GRAVES V. WADED CRUZADO, No. 17-36022 (9th Cir. 2018)

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FILED NOT FOR PUBLICATION JUN 19 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT JOHN ADAM GRAVES, U.S. COURT OF APPEALS No. 17-36022 Plaintiff-Appellant, D.C. No. 2:17-cv-00050-SEH v. MEMORANDUM* WADED CRUZADO, Dr.; et al., Defendants-Appellees. Appeal from the United States District Court for the District of Montana Sam E. Haddon, District Judge, Presiding Submitted June 12, 2018** Before: RAWLINSON, CLIFTON and NGUYEN, Circuit Judges. John Adam Graves appeals from the district court’s judgment dismissing with prejudice for failure to prosecute his 42 U.S.C. § 1983 action alleging federal and state law claims. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion. Al-Torki v. Kaempen, 78 F.3d 1381, 1384 (9th Cir. 1996). * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). We vacate and remand. The district court dismissed Graves’s action with prejudice for failure to prosecute after Graves and his counsel failed to comply with the district court’s November 9, 2017 order to show cause why the action should not be dismissed for failure to prosecute. We conclude that the less drastic sanction of dismissal without prejudice is appropriate in this case. See id. at 1384-85 (discussing factors to be considered before dismissing case for failure to prosecute, including the availability of less drastic sanctions); see also In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994) (stating that if district court does not make specific findings on relevant factors, this court reviews the record independently). We vacate the district court’s dismissal with prejudice and remand to the district court to enter judgment dismissing the action without prejudice. The parties shall bear their own costs on appeal. VACATED and REMANDED. 2 17-36022

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