Opinion
No. 05-36048.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed March 2, 2007.
Marvin Holiday, Umatilla, OR, pro se.
Susan M. Dunaway, Esq., Office of Multnomah County Attorneys, Portland, OR, for Defendants-Appellees.
Appeal from the United States District Court for the District of Oregon, Ancer L. Haggerty, District Judge, Presiding. D.C. No. CV-04-01037-ALH.
Before: BEEZER, FERNANDEZ, and McKEOWN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Oregon state prisoner Marvin Holiday appeals pro se from the district court's order dismissing without prejudice his 42 U.S.C. § 1983 action for failure to prosecute. We have jurisdiction under 28 U.S.C. § 1291; Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984) (dismissal of an action without prejudice is appealable). We review for abuse of discretion, id. at 495, and we reverse and remand.
The record shows Holiday deposited his response to the district court's Order to Show Cause in the mailbox at Oregon State Penitentiary on August 31, 2005. Because the response was not due until September 3, 2005, the district court abused its discretion in failing to find Holiday responded to the Order to Show Cause in a timely manner. See Houston v. Lack, 487 U.S. 266, 270-71, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (pro se prisoner's notice of appeal is deemed filed on the date of delivery to prison authorities for filing with the district court); Faile v. Upjohn Co., 988 F.2d 985, 988 (9th Cir. 1993) ("we see no reason to treat other civil `filing' deadlines differently than the deadline for filing a civil appeal"), disapproved of on other grounds, McDowell v. Calderon, 197 F.3d 1253 (9th Cir. 1999) (en banc).