Devonte Harris v. Keith Higgins

MEMORANDUM

On February 2, 2013, the district court certified that this appeal is not taken in good faith and has revoked appellant’s in forma pauperis status. Our review of the record indicates that appellant is entitled to in forma pauperis status for this appeal. See 28 U.S.C. § 1915 (a). .

California state prisoner Devonte Bernard Harris- appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging retaliation and violations of his Eighth Amendment rights. We have jurisdiction under 28 U.S.C. § 1291 . We review for an abuse of discretion the dismissal of an action for failure to comply with an order to file an amended complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.1992). We vacate and remand.

The district court did not make explicit findings concerning the five factors relevant to dismissal under Federal Rule of Civil Procedure 41(b). Id. at 1260-61 (describing relevant factors). We may, however, “review the record independently to determine if the district court has abused its discretion.” Id. at 1261 .

Our review shows that the “extreme circumstances” justifying dismissal with prejudice under Rule 41 may not have been…