Russell v. Oregon

177 F. App'x 629

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 17, 2006
• Docket: No. 05-35288
• Status: Published

Opinion

MEMORANDUM

**

Larry D. Russell appeals pro se from the district court’s order dismissing his action alleging violations of the Fifth and Fourteenth Amendment of the Constitution. We have jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion a district court’s dismissal of an action with prejudice for failure to comply with a court’s pretrial order. See Thompson v. Housing Authority of City of Los Angeles, 782 F.2d 829, 831-32 (9th Cir.1986). We affirm in part, vacate in part, and remand.

The district court did not abuse its discretion by dismissing Russell’s action for failing to file a pretrial order as there is no evidence in the record that the judge was aware that Russell was unable to locate Local Rule 16.6. See United States v. Elias, 921 F.2d 870, 874 (9th Cir.1990) (holding facts not presented to the district court are not part of the record on appeal). The case should not have been dismissed with prejudice, however, as Russell was not given adequate warning that the failure to file the order would result in the permanent bar of his claim. See United States v. Nat’l Medical Enterprises, Inc., 792 F.2d 906, 912-13 (9th Cir.1986) (holding failure to warn may be a ground for reversing an order of dismissal with prejudice). The case should have been dismissed without prejudice and is therefore vacated and remanded for entry of dismissal without prejudice.

The parties shall bear their own costs on appeal.

AFFIRMED in part; VACATED in part and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.