                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 15 2012

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




                             FOR THE NINTH CIRCUIT



JOHN ROBERT CLINE,                               No. 10-17058

               Plaintiff - Appellant,            D.C. No. 4:09-cv-00114-DCB

  v.
                                                 MEMORANDUM *
DORA SCHRIRO; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                              Submitted March 6, 2012 **

Before:        B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.

       John Robert Cline, an Arizona state prisoner, 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.




          *
             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).
§ 1291. We review for abuse of discretion a district court’s dismissal for failure to

prosecute, Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447, 1451 (9th Cir.

1994), and we reverse and remand.

      Although the district court did not abuse its discretion in requiring Cline to

sign an unaltered medical release, the district court abused its discretion when it

dismissed the case for failure to prosecute based on Cline’s delay in returning the

unaltered medical release to defendants. See id. at 1451 (listing factors to consider

in determining whether dismissal for failure to prosecute was an abuse of

discretion). Cline executed and mailed to defendants the unaltered release less

than forty days after the court’s deadline and without further order of the court and

thus did not unreasonably delay the proceedings. See id. (“In dismissing a case for

lack of prosecution, the court must find unreasonable delay.”). Further, there is no

indication in the record that this delay of less than forty days actually prejudiced

defendants. See id. at 1452-53; see also id. at 1454 (public policy favors

disposition of cases on the merits). Accordingly, we reverse the judgment and

remand for further proceedings.

      The district court did not abuse its discretion in denying without prejudice

Cline’s request for counsel where Cline moved for appointment of counsel before

the complaint was served and failed to show exceptional circumstances. See


                                           2                                     10-17058
Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (court may appoint counsel

only under exceptional circumstances).

      REVERSED and REMANDED.




                                         3                                 10-17058
