                                                                            FILED
                             NOT FOR PUBLICATION                             MAY 04 2011

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




                             FOR THE NINTH CIRCUIT



MALIK JONES,                                      No. 10-15106

               Plaintiff - Appellant,             D.C. No. 2:08-cv-00251-DAE-
                                                  KSC
  v.

D. VANDERVILLE; et al.,                           MEMORANDUM *

               Defendants - Appellees.



                     Appeal from the United States District Court
                        for the Eastern District of California
                      David A. Ezra, District Judge, Presiding

                              Submitted April 20, 2011 **

Before:        RYMER, THOMAS, and PAEZ, Circuit Judges.

       California state prisoner Malik Jones appeals pro se from the district court’s

judgment dismissing his 42 U.S.C. § 1983 action under Federal Rule of Civil

Procedure 41(b). We have jurisdiction under 28 U.S.C. § 1291. We review for an




          *
             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).
abuse of discretion. Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). We

vacate and remand.

      Because the district court did not make explicit findings concerning the five

factors relevant to dismissal under Rule 41(b), we “review the record

independently to determine if the district court has abused its discretion.” Id. at

1260-61 (describing relevant factors).

      The district court dismissed the action fewer than three weeks after the

amended complaint was due, while Jones awaited a ruling on his objections to the

magistrate judge’s orders. It did not consider any less drastic alternatives to

dismissal with prejudice, such as granting Jones additional time to file his amended

complaint, as he had requested. See Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th

Cir. 2002) (granting leave to amend and warning of dismissal for failure to comply

did not constitute consideration of less drastic alternatives). Moreover, there was

no prejudice to defendants, who had not yet been served. Under these

circumstances, the relevant factors did not warrant dismissal of Jones’s action. See

Ferdik, 963 F.2d at 1260-62 (dismissal with prejudice under Rule 41(b) “is a harsh

penalty and . . . should only be imposed in extreme circumstances”); cf.

Pagtalunan, 291 F.3d at 642-43 (affirming Rule 41(b) dismissal where delay was

almost four months and unreasonably prejudiced defendants).


                                           2                                      10-15106
Accordingly, we vacate and remand for further proceedings.

Jones shall bear his own costs on appeal.

VACATED and REMANDED.




                                   3                         10-15106
