Nicholas Garcia v. Spokane County;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICHOLAS GARCIA,
Plaintiff - Appellant,
v.
SPOKANE COUNTY; et al.,
Defendants - Appellees.
No. 12-36074
D.C. No. 2:10-cv-00349-TOR
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, District Judge, Presiding
Submitted April 7, 2014**
Before: TASHIMA, GRABER, and IKUTA, Circuit Judges.
Nicholas Garcia appeals pro se from the district court’s judgment dismissing
his 42 U.S.C. § 1983 action alleging constitutional violations during his detention
at Spokane County Jail. We have jurisdiction under 28 U.S.C. § 1291. We review
for an abuse of discretion a dismissal for failure to comply with court orders,
FILED
APR 15 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir. 2002), and we reverse and
remand.
The district court dismissed this action, in part, because Garcia failed to
provide witness and exhibit lists and because Garcia failed to appear at the pre-trial
conference. However, as to the first reason, Garcia did provide lists of his
proposed witnesses and exhibits in his pre-trial report, albeit not at the time and in
the format requested by the district court. As to the second, Garcia provided an
excuse as to why he was not at the pre-trial conference. Under these
circumstances, we conclude that dismissal was an abuse of discretion. See id. at
642-43 (listing factors to consider before dismissing for failure to comply with a
court order); Oliva v. Sullivan, 958 F.2d 272, 273 (9th Cir. 1992) (“Because
dismissal is a harsh penalty, it should be imposed as a sanction only in extreme
circumstances.”). Accordingly, we reverse and remand for further proceedings.
Garcia’s motion to add district court documents to the appellate record, filed
on September 5, 2013, is granted.
REVERSED and REMANDED.
12-36074 2

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