                                                                           FILED
                             NOT FOR PUBLICATION                            AUG 05 2013

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




                             FOR THE NINTH CIRCUIT



JESSE L. YOUNGBLOOD,                             No. 12-57237

               Plaintiff - Appellant,            D.C. No. 5:11-cv-01625-JAK-CFE

  v.
                                                 MEMORANDUM *
5 UNKNOWN CIM CORRECTIONAL
OFFICERS,

               Defendants - Appellees.



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

                              Submitted July 24, 2013 **

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

       Jesse L. Youngblood, a California state prisoner, appeals pro se from the

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

unusual punishment. We have jurisdiction under 28 U.S.C. § 1291. We review for


          *
             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).
an abuse of discretion a district court’s dismissal for failure to serve, Puett v.

Blandford, 912 F.2d 270, 275 (9th Cir. 1990), and for failure to comply with a

court order, Ash v. Cvetkov, 739 F.2d 493, 495 (9th Cir. 1984). We vacate and

remand.

      Dismissal of Youngblood’s action for failure to effect service was premature

as Youngblood should have been given an opportunity to identify the defendants

through limited discovery. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.

1980) (holding that where a plaintiff is unaware of the identity of alleged

defendants, “plaintiff should be given an opportunity through discovery to identify

the unknown defendants, unless it is clear that discovery would not uncover the

identities or that the complaint would be dismissed on other grounds”); see also

Fed. R. Civ. P. 45 (permitting third party subpoenas); Fed. R. Civ. P.

26(d) (prohibiting discovery prior to a Rule 26(f) conference except “when

authorized . . . by court order”).

      To the extent that the district court dismissed Youngblood’s action without

prejudice for failure to comply with a court order, the district court abused its

discretion because the court failed to consider less drastic alternatives. See

Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002) (listing factors to

consider before dismissing for failure to comply with a court order and explaining


                                            2                                        12-57237
that warning of dismissal for failure to comply prior to disobedience of the 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.”).

      Youngblood’s “application in support of summons/complaint,” submitted on

July 1, 2013, is denied without prejudice to renewal before the district court on

remand.

      VACATED AND REMANDED.




                                           3                                    12-57237
