857 F2d 1477 Cole v. Barkley

857 F.2d 1477

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Aliconn D. COLE, Plaintiff-Appellant,
v.
Michael BARKLEY, et al, Defendants-Appellees.

No. 86-4290.

United States Court of Appeals, Ninth Circuit.

Submitted July 26, 1988.
Decided Sept. 1, 1988.

Before FERGUSON, NORRIS and WIGGINS, Circuit Judges.


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1

MEMORANDUM**

2

Aliconn Dwon Cole appeals pro se the dismissal of his civil rights action for failure to prosecute. We review the dismissal under an abuse of discretion standard, Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.1986), and reverse.

3

On March 18, 1986, Cole brought the present civil rights complaint against the County of Multnomah, Oregon, and a number of police officials. The complaint bore a Salem, Oregon, address for the pro se plaintiff. On June 18, Cole filed a letter notifying the court that he had moved to a Portland, Oregon, address. Nevertheless, on July 25, 1986, he filed an amended complaint that bore his original Salem, Oregon, address. Three days thereafter, the post office returned to the court an envelope containing a copy of an order that had been mailed to the Portland address. The following day, the magistrate recommended that the action be dismissed for failure to prosecute because Cole had failed to keep the court informed of his current address. This order was mailed to the Portland address and was returned to the court as undeliverable. The judgment of dismissal was mailed to the Salem address and was also returned to the court.

4

For reasons that are not clear, all of the documents filed by Cole in connection with this appeal have shown his Portland address to be current. No document in connection with the appeal has been returned.

5

We conclude that the district court acted too hastily and did not consider alternatives to a dismissal with prejudice of Cole's claim. Cole was never warned that his case would be dismissed and given an opportunity to show cause as to why the court should not dismiss it. Moreover, there is no indication that the court attempted to determine the reasons why the mail was not deliverable at either of the Oregon addresses; nor did the court attempt to mail the documents again.

6

Under the circumstances of this case we find that the district court abused its discretion in dismissing Cole's complaint for failure to prosecute.

7

The district court's judgment is REVERSED.

*

The panel finds this case appropriate for submission without argument pursuant to Fed.R.App.P. 34(a) and 9th Cir.R. 34-4


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**

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