Opinion
20-16504
08-25-2022
RODNEY D. MOORE, Plaintiff-Appellant, v. CHARLES L. RYAN; UNKNOWN PARTIES, T.S.U. Officers at Arizona Department of Corrections; DAVID SHINN, Director, ADOC Director; HERNANDEZ, Named as Hernandez John/Jane Doe; JACKIE HUTCHINSON; C. R. GLYNN, Defendants-Appellees.
NOT FOR PUBLICATION
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court for the District of Arizona James A. Teilborg, District Judge, Presiding D.C. No. 2:19-cv-04543-JAT-DMF
Before: S.R. THOMAS, PAEZ, and LEE, Circuit Judges.
MEMORANDUM
Arizona state prisoner Rodney D. Moore appeals pro se from the district court's judgment dismissing for failure to comply with a court order his 42 U.S.C. § 1983 action alleging Eighth Amendment violations. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion a dismissal under Federal Rule of Civil Procedure 41(b). Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir. 2002). We vacate and remand.
The district court dismissed Moore's action for failure to comply with its April 29, 2020 order directing records officer Jackie Hutchinson to respond to Moore's subpoena and instructing Moore to file a notice of submission within sixty days of Hutchinson's response. However, because Hutchinson never filed a response to Moore's subpoena, Moore could not have filed a notice of submission. See Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 891 (9th Cir. 2019) (setting forth factors the district court must consider in dismissing under Rule 41(b) and noting that by the plain text of the rule, dismissal "requires a court order with which an offending plaintiff failed to comply"). We vacate the judgment and remand for further proceedings.
Moore's motion to appoint counsel (Docket Entry No. 5) is denied.
Appellees will bear the 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).