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Lively v. Gomez

filed*fn1: May 18, 1995.

DAYON LIVELY, PLAINTIFF-APPELLANT
v.
JAMES GOMEZ; NADIM KOUHRY, M.D.; GEORGE INGLE; SUE HUBBARD, DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Eastern District of California. D.C. No. CV-93-00435-GEB(J. Garland E. Burrell, District Judge, Presiding.

Before: Wallace, Chief Judge, Hug and Noonan, Circuit Judges.

MEMORANDUM*fn1a

California state prisoner Dayon Lively appeals pro se the district court's dismissal without prejudice of his 42 U.S.C. § 1983 action for failure to keep the court apprised of his current address. We have jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion, Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987), and affirm.

A district court may dismiss an action for failure to comply with any order of the court. Fed. R. Civ. P. 41(b); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.), cert. denied, 121 L. Ed. 2d 242, 113 S. Ct. 321 (1992). Dismissal, however, is a severe penalty and should be imposed only in extreme circumstances. Id. at 1261. We will not disturb the district court's dismissal unless there is a definite and firm conviction that the district court committed a clear error of judgment in its Conclusion based upon a weighing of the relevant factors. Eldridge, 832 F.2d at 1136. These factors include: "(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." Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir.), cert. denied, 479 U.S. 829, 93 L. Ed. 2d 60, 107 S. Ct. 112 (1986).

Here, the court dismissed Lively's action after the court's discovery order was returned as undeliverable, and Lively made no response to the magistrate Judge's order recommending dismissal due to Lively's failure, as the plaintiff, to keep the court apprised of his address.

In light of the express instructions and warning given Lively and his failure to inform the court of his current address, the district court did not abuse its discretion by dismissing Lively's action. See Ferdik, 963 F.2d at 1261-62.

AFFIRMED.* ...


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