                                                                           FILED
                              NOT FOR PUBLICATION                           MAY 25 2012

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




                              FOR THE NINTH CIRCUIT



MICHAEL LENOIR SMITH,                            No. 11-15442

                Plaintiff - Appellant,           D.C. No. 1:07-cv-01547-SRB

  v.
                                                 MEMORANDUM *
ARNOLD SCHWARZENEGGAR,
Governor; et al.,

                Defendants - Appellees.



                     Appeal from the United States District Court
                        for the Eastern District of California
                     Susan R. Bolton, District Judge, Presiding **

                              Submitted May 15, 2012 ***

Before:         CANBY, GRABER, and M. SMITH, Circuit Judges.

       California state prisoner Michael Lenoir Smith appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action without prejudice


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
for failure to comply with a court order. We review for an abuse of discretion,

Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992), and we reverse and

remand.

      The district court dismissed for failure to comply with its order requiring

Smith to return within thirty days the Notice of Submission of Documents and the

documents necessary for service of the summons and complaint. However,

Smith’s motion to stay proceedings shows that Smith was unable to file these

documents within the time limit for reasons beyond his control, and that he

attempted to alert the court to his situation at least twice prior to dismissal.

Because the district court failed to consider the reasons for Smith’s delay or

explore less harsh alternatives before dismissing, we reverse and remand for

further proceedings. See Pagtalunan v. Galaza, 291 F.3d 639, 642-43 & n.4 (9th

Cir. 2002) (listing factors to consider before dismissing for failure to comply with

a court order and explaining that less drastic alternatives must be pursued after

disobedience); Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir. 1992) (reversing

dismissal where the case did not “present the egregious circumstances, or the

court’s use of less drastic measures prior to dismissal”).

      REVERSED and REMANDED.




                                            2                                      11-15442
