Wheeler v. Terrible Herbst Inc., 111912 FED9, 11-16486

Docket Nº:11-16486
Party Name:ARTHUR J. WHEELER, Plaintiff-Appellant, v. TERRIBLE HERBST INC., Defendant-Appellee.
Judge Panel:Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.
Case Date:November 19, 2012
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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ARTHUR J. WHEELER, Plaintiff-Appellant,

v.

TERRIBLE HERBST INC., Defendant-Appellee.

No. 11-16486

United States Court of Appeals, Ninth Circuit

November 19, 2012

NOT FOR PUBLICATION

Submitted November 13, 2012.[**]

Appeal from the United States District Court No. 2:10-cv-00866-GMN-PAL for the District of Nevada Gloria M. Navarro, District Judge, Presiding.

Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.

MEMORANDUM[*]

Arthur J. Wheeler appeals pro se from the district court's judgment dismissing his Title VII action alleging racial discrimination and retaliation. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court's dismissal for failure to state a claim. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). We review for an abuse of discretion a dismissal for failure to comply with a court order or a local rule. Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir. 2002); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). We reverse and remand.

To the extent that the district court dismissed Wheeler's action for failure to state a claim, the district court abused its discretion by dismissing Wheeler's action with prejudice and without an opportunity to amend because Wheeler was proceeding pro se, he indicated that he had recently obtained counsel, and it is not clear that his complaint could not be cured by amendment. See Flowers v. First Hawaiian Bank, 295 F.3d 966, 976 (9th Cir. 2002) (noting standard of review and that this court is "very cautious in approving a district court's decision to deny pro se litigants leave to amend").

To the extent that the district court dismissed Wheeler's action with prejudice for failure to comply with a court order or a local rule, the district court abused its discretion because the court failed to consider less drastic alternatives. See Pagtalunan, 291 F.3d at 642-43 (listing factors to consider before dismissing for failure to comply with a court order and explaining that warning of dismissal for failure to comply prior to disobedience of the court order did not constitute consideration of less drastic alternatives); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) ("[D]ismissal is a harsh penalty and...

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