Michael T. Porter v. Deputy Martinez, Deputy Rivera, Deputy Ruben, Deputy Morales, Deputy Smith
Opinion
Opinion
ORDER
The memorandum disposition filed July 26, 1991, is redesignated as a per curiam opinion.
OPINION
Michael T. Porter, a former California state prisoner, appeals the district court’s dismissal of his 42 U.S.C. § 1983 action pursuant to Fed.R.Civ.P. 37(b) & (d) for failure to comply with discovery orders. We review the imposition of discovery sanctions under Rule 37 for an abuse of discretion, Fjelstad v. American Honda Motor Co., 762 F.2d 1334, 1337 (9th Cir.1985), and we vacate and remand.
Dismissal under Rule 37(b) is appropriate only for failure to comply with a court order compelling discovery. Fed. R.Civ.P. 37(b); see Fjelstad, 762 F.2d at 1339 . Rule 37(d) provides that
A district court has the discretion to impose the extreme sanction of dismissal if there has been “flagrant, bad faith disregard of discovery duties.” Wanderer v. Johnston, 910 F.2d 652, 655-56 (9th Cir.1990) (citing National Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639 , 96 S.Ct. 2778 , 49 L.Ed.2d 747 (1976)). Because the sanction of dismissal is such a harsh penalty, the district court must weigh five factors before imposing dismissal: “(1) the public’s interest in expeditious resolution…