                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 28 2011

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




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-56881

             Plaintiff - Appellee,               D.C. No. 2:04-cv-06586-GHK-
                                                 AJW
  v.

4820 HEAVEN AVENUE, WOODLAND                     MEMORANDUM *
HILLS, CALIFORNIA, the premises
known as, and several other premises
searched,

             Defendant,

  and

FRANK S. CLEMENT, AKA Frank
Clement,

             Claimant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     George H. King, District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                             Submitted March 8, 2011 **

Before:        FARRIS, O’SCANNLAIN, and BYBEE, Circuit Judges.

      Frank S. Clement, a California state prisoner, appeals pro se from the district

court’s order dismissing for failure to prosecute his petition seeking the return of

property. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse

of discretion. Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir. 2002). We

vacate and remand.

      The district court dismissed Clement’s action sua sponte for failure to

prosecute, but the docket reflects that the delay in prosecution was the result of the

district court’s failure to make any ruling on Clement’s petition. Accordingly, we

vacate and remand for further proceedings.

      Clement’s remaining contentions are unpersuasive.

      Clement shall bear his costs on appeal.

      VACATED and REMANDED.




          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                           2                                    09-56881
