56 F3d 72 Lively v. Gomez

Dayon LIVELY, Plaintiff-Appellant,
v.
James GOMEZ; Nadim Kouhry, M.D.; George Ingle; Sue Hubbard,
Defendants-Appellees.

No. 94-15142.

United States Court of Appeals, Ninth Circuit.

Submitted May 16, 1995.*
Decided May 18, 1995.

56 F.3d 72
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: WALLACE, Chief Judge, HUG and NOONAN, Circuit Judges.

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1

MEMORANDUM**

2

California state prisoner Dayon Lively appeals pro se the district court's dismissal without prejudice of his 42 U.S.C. Sec. 1983 action for failure to keep the court apprised of his current address. We have jurisdiction under 28 U.S.C. Sec. 1291. We review for abuse of discretion, Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987), and affirm.

3

A district court may dismiss an action for failure to comply with any order of the court. Fed. R. Civ. P. 41(b); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.), cert. denied, 113 S. Ct. 321 (1992). Dismissal, however, is a severe penalty and should be imposed only in extreme circumstances. Id. at 1261. We will not disturb the district court's dismissal unless there is a definite and firm conviction that the district court committed a clear error of judgment in its conclusion based upon a weighing of the relevant factors. Eldridge, 832 F.2d at 1136. These factors include: "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir.), cert. denied, 479 U.S. 829 (1986).

4

Here, the court dismissed Lively's action after the court's discovery order was returned as undeliverable, and Lively made no response to the magistrate judge's order recommending dismissal due to Lively's failure, as the plaintiff, to keep the court apprised of his address.

5

In light of the express instructions and warning given Lively and his failure to inform the court of his current address, the district court did not abuse its discretion by dismissing Lively's action. See Ferdik, 963 F.2d at 1261-62.

AFFIRMED.1

*

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir. R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3

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1

In light of our holding, we need not consider Lively's arguments regarding the merits of his underlying action, and we express no opinion regarding them