Daronta Lewis v. P. Garcia ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 26 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARONTA TYRONE LEWIS, No. 20-17394
Plaintiff-Appellant, D.C. No. 2:20-cv-00399-TLN-
DMC
v.
P. GARCIA; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted January 19, 2022**
Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges.
California state prisoner Daronta Tyrone Lewis appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging violations
of the Eighth Amendment. We have jurisdiction under 28 U.S.C. § 1291. We
review for an abuse of discretion. In re Phenylpropanolamine (PPA) Prods. Liab.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Litig., 460 F.3d 1217, 1233-34 (9th Cir. 2006) (dismissal as a sanction under Fed.
R. Civ. P. 37); Ash v. Cvetkov, 739 F.2d 493, 495 (9th Cir. 1984) (dismissal for
failure to prosecute). We vacate and remand.
The district court dismissed Lewis’s action for failure to prosecute because
Lewis had failed to follow or acknowledge the court’s orders. However, in his
notice of appeal, Lewis explained that he had not received the court’s order to
submit an application for leave to proceed in forma pauperis due to factors outside
of his control. See Hernandez v. City of El Monte, 138 F.3d 393, 400 (9th Cir.
1998) (“Dismissal is a harsh penalty,” appropriate “only in extreme circumstances”
of “unreasonable delay.”). We vacate the judgment and remand for further
proceedings.
VACATED AND REMANDED.
2 20-17394