                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                           FILED
                            FOR THE NINTH CIRCUIT                             AUG 26 2016

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

RAYMOND EUGENE PEYTON,                           No. 15-55968

               Plaintiff-Appellant,              D.C. No. 5:13-cv-00424-RGK-JPR

 v.
                                                 MEMORANDUM*
DAVE DAVEY, Warden; et al.,

               Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                    R. Gary Klausner, District Judge, Presiding

                            Submitted August 16, 2016**

Before:        O’SCANNLAIN, LEAVY, and CLIFTON, Circuit Judges.

      California state prisoner Raymond Eugene Peyton appeals pro se from the

district court’s judgment dismissing for failure to prosecute his 42 U.S.C. § 1983

action alleging Eighth Amendment claims related to prison overcrowding. We

have jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion. Al-

          *
             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).
Torki v. Kaempen, 78 F.3d 1381, 1384 (9th Cir. 1996). We vacate and remand.

      The district court dismissed the action with prejudice for failure to prosecute

because it found that Peyton failed to file a third amended complaint by the

deadline set in the April 14, 2015 order. On appeal, Peyton argues that he did not

receive the April 14, 2015 order until over three weeks after the deadline for filing

a third amended complaint had passed. Peyton has submitted documents to this

court in support of this argument. Accordingly, we vacate the judgment and

remand to the district court to allow it to consider Peyton’s explanation and

documents in the first instance. See Carey v. King, 856 F.2d 1439, 1440 (9th Cir.

1988) (per curiam) (setting forth five factors to weigh in determining whether to

dismiss action for lack of prosecution).

      We express no opinion on the merits of the claims in Peyton’s second

amended complaint.

      We do not consider Peyton’s contentions regarding his first amended

complaint or his claims against defendant Schwartz, which were addressed in a

prior appeal. See Peyton v. Brown, 584 F. App’x 603, 604 (9th Cir. 2014).

      Peyton’s April 7, 2016 motion to substitute party is denied without prejudice

to renewal in the district court.




                                           2                                    15-55968
Peyton’s July 28, 2016 motion for summary affirmance is denied as moot.

VACATED and REMANDED.




                                 3                                 15-55968
