                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        DEC 3 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

THURMAN GAINES,                                 No.    18-15713

                Plaintiff-Appellant,            D.C. No. 1:15-cv-00587-LJO-SAB

 v.
                                                MEMORANDUM*
HOROWITZ, Doctor, MCSP,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Eastern District of California
                   Lawrence J. O’Neill, Chief Judge, Presiding

                          Submitted November 27, 2018**

Before:      CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.

      California state prisoner Thurman Gaines appeals pro se from the district

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

indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.

§ 1291. We review for an abuse of discretion a dismissal as a sanction for failure



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
to comply with discovery obligations. Malone v. USPS, 833 F.2d 128, 130 (9th

Cir. 1987). We vacate and remand.

      Gaines failed to comply with a court order compelling responses to

interrogatories and requests for production on the issue of administrative

exhaustion, and defendant twice moved for terminating sanctions. In opposition to

defendant’s second motion for sanctions, Gaines provided further supplemental

responses, which defendant stated were adequate. The magistrate judge

recommended denying defendant’s second motion for terminating sanctions but

imposing an evidentiary sanction “prohibit[ing] [Gaines] from supporting his case

or opposing Defendant’s defenses with any evidence not disclosed in response to

Defendant’s exhaustion interrogatories or requests for production of documents.”

The district court instead granted terminating sanctions on the ground that “[i]t

would not be possible at trial to exclude all of the issues not responded to in

discovery, and for [Gaines] to still have a case to present.”

      It is unclear from the district court’s order what evidence the district court

intended to exclude and how the exclusion would preclude Gaines from presenting

the merits of his medical deliberate indifference claim. Moreover, it is not clear

whether an evidentiary sanction is warranted given that Gaines eventually

complied with his discovery obligations to defendant’s satisfaction. See

Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986) (dismissal with


                                          2                                       18-15713
prejudice is a harsh sanction that should be employed only in “extreme

circumstances”). We vacate and remand for further proceedings.

      The parties shall bear their own costs on appeal.

      VACATED and REMANDED.




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