Larry W. Kirk v. B. McDormott

48 F.3d 1228
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Larry W. KIRK, Plaintiff-Appellant,
v.
B. McDORMOTT, et al., Defendants-Appellants.

No. 94-16158.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 21, 1995.*
Decided Feb. 28, 1995.

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

1

MEMORANDUM**

2

California state prisoner Larry Kirk appeals pro se the district court's dismissal of his 42 U.S.C. Sec. 1983 action for failure to file a timely pretrial statement, pursuant to Fed.R.Civ.P. 16(f) and Local Rule 110 for the United States District Court for the Eastern District of California.

3

We review the district court's dismissal pursuant to Fed.R.Civ.P. 16(f) for abuse of discretion. Thompson v. Housing Authority of City of Los Angeles, 782 F.2d 829, 831 (9th Cir.), cert. denied, 479 U.S. 829 (1986). Failure to comply with pretrial procedures is a proper ground for dismissal. Id. The district court abuses its discretion when it bases its decision on an erroneous view of the law or a clearly erroneous view of the facts. See United States v. Rahm, 993 F.2d 1405, 1410 (9th Cir.1993).

4

In its June 13, 1994 order of dismissal, the district court stated that Kirk "never submitted a proposed pretrial statement, due on March 4, 1994, nor has he submitted a proposed trial statement." The district court record indicates that Kirk, however, did in fact submit a pretrial statement on June 6, 1994. Because the district court relied on erroneous facts in dismissing Kirk's action, we vacate the district court's dismissal and remand to the district court for further proceedings. See Rahm, 993 F.2d at 1410.

5

VACATED AND 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