                                                                             FILED
                              NOT FOR PUBLICATION                             AUG 02 2013

                                                                          MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



DEVONTE BERNARD HARRIS,                            No. 12-15721

                Plaintiff - Appellant,             D.C. No. 2:08-cv-01711-LDG

  v.
                                                   MEMORANDUM *
KEITH HIGGINS; et al.,

                Defendants - Appellees.



                     Appeal from the United States District Court
                         for the Eastern District of California
                     Lloyd D. George, District Judge, Presiding **

                               Submitted July 24, 2013 ***

Before:         ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.

       On February 2, 2013, the district court certified that this appeal is not taken

in good faith and has revoked appellant’s in forma pauperis status. Our review of



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The Honorable Lloyd D. George, United States District Judge for the
District of Nevada, sitting by designation.
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the record indicates that appellant is entitled to in forma pauperis status for this

appeal. See 28 U.S.C. § 1915(a).

      California state prisoner Devonte Bernard Harris appeals pro se from the

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

retaliation and violations of his Eighth Amendment rights. We have jurisdiction

under 28 U.S.C. § 1291. We review for an abuse of discretion the dismissal of an

action for failure to comply with an order to file an amended complaint. Ferdik v.

Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). We vacate and remand.

      The district court did not make explicit findings concerning the five factors

relevant to dismissal under Federal Rule of Civil Procedure 41(b). Id. at 1260-61

(describing relevant factors). We may, however, “review the record independently

to determine if the district court has abused its discretion.” Id. at 1261.

      Our review shows that the “extreme circumstances” justifying dismissal with

prejudice under Rule 41 may not have been present. Id. at 1260 (dismissal with

prejudice under Rule 41(b) “is a harsh penalty and . . . should only be imposed in

extreme circumstances”); see also Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th

Cir. 2002) (granting leave to amend and warning of dismissal for failure to comply

did not constitute consideration of less drastic alternatives). For example, the order

dismissing Harris’s action states that Harris did not provide any reason in his


                                            2                                     12-15721
motion for extension of time for his failure to timely file that motion. His motion,

however, did provide a reason.

      Accordingly, because it is not clear from the record whether dismissal was

appropriate, we vacate and remand for further consideration, including whether,

under the relevant factors, dismissal with prejudice is warranted.

      Harris’s pending motions are denied as unnecessary.

      VACATED and REMANDED.




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