GRAVES v. CRUZADO (2018)

MEMORANDUM **

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). 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.