                                                                             FILED
                             NOT FOR PUBLICATION                             NOV 19 2012

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




                             FOR THE NINTH CIRCUIT



ARTHUR J. WHEELER,                               No. 11-16486

               Plaintiff - Appellant,            D.C. No. 2:10-cv-00866-GMN-
                                                 PAL
  v.

TERRIBLE HERBST INC.,                            MEMORANDUM *

               Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Nevada
                    Gloria M. Navarro, District Judge, Presiding

                           Submitted November 13, 2012 **

Before:        CANBY, TROTT, and W. FLETCHER, Circuit Judges.

       Arthur J. Wheeler appeals pro se from the district court’s judgment

dismissing his Title VII action alleging racial discrimination and retaliation. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s




          *
             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).
dismissal for failure to state a claim. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th

Cir. 2005). We review for an abuse of discretion a dismissal for failure to comply

with a court order or a local rule. Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th

Cir. 2002); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). We

reverse and remand.

      To the extent that the district court dismissed Wheeler’s action for failure to

state a claim, the district court abused its discretion by dismissing Wheeler’s action

with prejudice and without an opportunity to amend because Wheeler was

proceeding pro se, he indicated that he had recently obtained counsel, and it is not

clear that his complaint could not be cured by amendment. See Flowers v. First

Hawaiian Bank, 295 F.3d 966, 976 (9th Cir. 2002) (noting standard of review and

that this court is “very cautious in approving a district court’s decision to deny pro

se litigants leave to amend”).

      To the extent that the district court dismissed Wheeler’s action with

prejudice for failure to comply with a court order or a local rule, the district court

abused its discretion because the court failed to consider less drastic alternatives.

See Pagtalunan, 291 F.3d at 642-43 (listing factors to consider before dismissing

for failure to comply with a court order and explaining that warning of dismissal

for failure to comply prior to disobedience of the court order did not constitute


                                            2                                    11-16486
consideration of less drastic alternatives); Ferdik v. Bonzelet, 963 F.2d 1258, 1260

(9th Cir. 1992) (“[D]ismissal is a harsh penalty and, therefore, it should only be

imposed in extreme circumstances.”). Moreover, Wheeler’s violations, such as

filing his pro se opposition to the motion to dismiss five days late, did not

prejudice defendant or impede the court’s ability to manage its docket. See

Ghazali, 46 F.3d at 53 (listing factors to consider before dismissing for failure to

comply with a local rule); Malone v. U.S. Postal Serv., 833 F.2d 128, 131 (9th Cir.

1987) (“In determining whether a defendant has been prejudiced, we examine

whether the plaintiff’s actions impair the defendant’s ability to go to trial or

threaten to interfere with the rightful decision of the case.”).

      Accordingly, we reverse and remand for further proceedings consistent with

our disposition.

      REVERSED and REMANDED.




                                            3                                      11-16486
