Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Decided Jan. 25, 1991.
Appeal from the United States District Court For the Eastern District of California, No. CV-86-524-EJG; Edward J. Garcia, District Judge, Presiding.
E.D.Cal.
AFFIRMED.
Before ALARCON, CYNTHIA HOLCOMB, HALL and RYMER, Circuit Judges.
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.
Morgan L. Meeks, a former California state prisoner now on parole, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action without prejudice under Fed.R.Civ.P. 41(b). We review for an abuse of discretion, Hernandez v. Whiting, 881 F.2d 768, 770 (9th Cir.1989), and we affirm.
The district court's dismissal of the action without prejudice is an appealable final order. See United States v. Wallace & Tiernan Co., 336 U.S. 793, 994-95 n. 1 (1949); Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir.1984), cert. denied, 470 U.S. 1007 (1985).
Under Rule 41(b), an action may be dismissed "[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court." The district court must weigh five factors before imposing dismissal: (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. Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir.1987), cert. denied, 488 U.S. 819 (1988). If the district court does not explicitly consider these factors, we review the entire record to determine whether the order of dismissal was an abuse of discretion. Id.
In his complaint, Meeks alleged mental abuse and insufficient medical attention from prison officials, but did not allege any facts describing the conduct. After Meeks filed his complaint with the district court, the district court notified him by order entered August 1, 1986 that his complaint did not contain a short and plain statement of his claims as required by Fed.R.Civ.P. 8(a)(2). The court also noted that to the extent that Meeks sought release from custody, his claims were cognizable only by writ of habeas corpus and that Meeks had failed to allege exhaustion of state remedies. In its order, the court advised Meeks that he needed to describe the facts giving rise to his claims and how the defendants were involved in the alleged deprivation. The court gave Meeks 30 days to file an amended complaint, and advised him that failure to file an amended complaint would result in dismissal of the action. After Meeks failed to file an amended complaint, the district court dismissed the action without prejudice.
Because the district court advised Meeks how to cure the complaint's deficiencies, warned him that the action would be dismissed if he failed to file an amended complaint, and dismissed the action without prejudice to the filing of a new action, the court did not abuse its discretion in dismissing Meeks's action without prejudice. See Malone, 833 F.2d at 132.
AFFIRMED.
Although Meeks's notice of appeal was not filed by the district court until December 5, 1986, it is timely because it was delivered to prison officials by November 19, 1986, which is within thirty days of October 22, 1986, the date the district court entered its judgment. See Fed.R.App.P. 4(a); Houston v. Lack, 487 U.S. 266, 270 (1988).