                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 08 2014

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


GREGORY ALLEN FRANKLIN,                          No. 13-56576

               Plaintiff - Appellant,            D.C. No. 3:11-cv-01240-JAH-
                                                 BGS
  v.

J. JIMENEZ, Lieutenant; et al.,                  MEMORANDUM*

               Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Southern District of California
                     John A. Houston, District Judge, Presiding

                           Submitted November 18, 2014**

Before:        LEAVY, FISHER, and N.R. SMITH, Circuit Judges.

       Gregory Allen Franklin, a California state prisoner, appeals pro se from the

district court’s order dismissing his 42 U.S.C. § 1983 action alleging constitutional

violations. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse

of discretion. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258 (9th Cir.

          *
             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).
2010). We reverse and remand.

      Franklin’s motion, filed in the district court on February, 21, 2013, is most

properly treated as a motion for an extension of time to file a Second Amended

Complaint. The district court abused its discretion by denying Franklin’s motion,

because Franklin’s assertion that he had not received the district court’s order

dismissing his First Amended Complaint with leave to amend demonstrated that

his failure to file a Second Amended Complaint within 45 days was excusable. See

Fed. R. Civ. P. 6(b)(1)(B) (“When an act may or must be done within a specified

time, the court may, for good cause, extend the time on motion made after the time

has expired if the party failed to act because of excusable neglect.”); In re Veritas

Software Corp. Sec. Litig., 496 F.3d 962, 973 (9th Cir. 2007) (setting forth factors

a district court must consider to determine whether neglect is excusable); see also

Ahanchian, 624 F.3d at 1258-59 (noting that Rule 6(b), like all the Federal Rules

of Civil Procedure, is to be “liberally construed to effectuate the general purpose of

seeing that cases are tried on the merits” (citation and internal quotation marks

omitted)).

      Accordingly, we remand for the district court to give Franklin an

opportunity to file a Second Amended Complaint.

      REVERSED and REMANDED.


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