Ferguson v. California Department of Corrections ( 2010 )

FILED
NOT FOR PUBLICATION NOV 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JIM FERGUSON, No. 09-15299
Plaintiff - Appellant, D.C. No. 2:06-cv-01301-MCE-
KJM
v.
CALIFORNIA DEPARTMENT OF MEMORANDUM *
CORRECTIONS; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted October 19, 2010 **
Before: O’SCANNLAIN, LEAVY, and TALLMAN, Circuit Judges.
Jim Ferguson, a former California state prisoner, appeals pro se from the
district court’s order dismissing his action for violating a local rule requiring that a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
09-15299
pro se litigant keep the court apprised of his current address. We have jurisdiction
under 28 U.S.C. § 1291. We review for an abuse of discretion, Eldridge v. Block,
832 F.2d 1132, 1137-38 (9th Cir. 1987), and we reverse and remand.
Although service of orders on Ferguson attempted via United States Mail
inexplicably were returned to the district court as undeliverable, the record shows
that Ferguson had not changed his address. Moreover, there is no indication that
the court considered sanctions less drastic than dismissal or that the court warned
Ferguson that dismissal was imminent. The circumstances of this case do not
justify dismissal. See id. at 1137 (sanctioned party arguably complied with court’s
order and local rule, and if court concluded otherwise it should have granted him
an extension of time in which to comply); see also Hernandez v. City of El Monte,
138 F.3d 393, 400 (9th Cir. 1998) (reversing dismissal where less drastic sanctions
were not considered).
REVERSED and REMANDED.
2 09-15299