914 F. 2d 261 - Ashelman v. Lewis
914 F2d 261 Ashelman v. Lewis
914 F.2d 261
Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Kenneth O. ASHELMAN, Plaintiff-Appellant,
v.
Sam LEWIS, Director--ADOC, Bob Goldsmith, Regional Warden,
Alfred Grijalva, Deputy Warden, Walter Walton,
Chaplain, Defendants-Appellees.
No. 89-15666.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 13, 1990.*
Decided Sept. 5, 1990.
Before CHAMBERS, KOZINSKI and NOONAN, Circuit Judges.
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MEMORANDUM**
In reviewing the dismissal of a suit for lack of prosecution, we consider the party's diligence, the court's need to control its docket, the danger of prejudice to the party suffering the delay, the existence of a warning to the party causing the delay and the availability of other sanctions. Hamilton v. Neptune Orient Lines, Ltd., 811 F.2d 498, 499 (9th Cir.1987).
Here the consequences of the dismissal were severe: When the court dismissed the suit it also dissolved a preliminary injunction that had stopped the prison from enforcing allegedly unconstitutional policies. Thus, the dismissal, even though it was without prejudice, did not merely set plaintiff's suit back a few months; it deprived him of the preliminary injunction, subjecting him to policies that may have violated his free exercise rights. Plaintiff's transgressions--failure to timely respond to the motions to dismiss and failure to initiate the drafting of pretrial orders as required by local rule--were his first; the suit had been pending for only four months and the court had issued no warnings.
Because the court chose a sanction with such drastic consequences without warning plaintiff or considering alternatives, we conclude that it abused its discretion.
REVERSED.