Gilbert Osuna v. Erives

FILED
NOT FOR PUBLICATION AUG 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GILBERT OSUNA, No. 13-55275
Plaintiff - Appellant, D.C. No. 2:12-cv-02475-PA-VBK
v.
MEMORANDUM *
MR. ERIVES, individual and LAPD Patrol
B/W Unit Officer, official capacity; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted August 14, 2013 **
Before: SCHROEDER, GRABER, and PAEZ, Circuit Judges.
Gilbert Osuna appeals pro se from the district court’s judgment dismissing
his 42 U.S.C. § 1983 action alleging excessive force and deliberate indifference.
We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of
*
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).
discretion a dismissal for failure to prosecute, Al-Torki v. Kaempen, 78 F.3d 1381,
1384 (9th Cir. 1996), and for failure to comply with a court order, Ferdik v.
Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). We vacate and remand.
The district court abused its discretion in dismissing Osuna’s action with
prejudice for failure to notify the court that Osuna had provided documents to the
U.S. Marshals Service because it failed to consider less drastic alternatives.
Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002) (listing factors to
consider before dismissing for failure to prosecute or failure to comply with court
orders and explaining that warning of dismissal prior to disobedience of a court
order did not constitute consideration of less drastic alternatives); Ferdik, 963 F.2d
at 1260 (“[D]ismissal is a harsh penalty and, therefore, it should only be imposed
in extreme circumstances.”). While the district court had previously ordered
Osuna on October 11, 2012 to provide the necessary documents to the U.S.
Marshals Service, the record demonstrates that the district court sent the order to
the incorrect address.
Osuna’s request for counsel, set forth in his opening brief, is denied without
prejudice to renewal before the district court.
VACATED and REMANDED.
2 13-55275