108 F3d 339 Rogers v. Bureau of Prisons

108 F.3d 339

Delinda Vianne ROGERS, Plaintiff-Appellant,
v.
BUREAU OF PRISONS; FCI/FPC Phoenix AZ; C.E. Floyd, Warden;
J. Teel, FPC Unit Manager; L. Mayo, FPC Case Manager; A.
Stauffer, FPC Counselor; O. Ivan White, Regional Director,
Defendants-Appellees.

No. 96-16390.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 18, 1997.*
Decided Feb. 20, 1997.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: ALARCN, CANBY, and TASHIMA, Circuit Judges.

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1

MEMORANDUM**

2

DeLinda Vianne Rogers, a federal prisoner, appeals pro se the district court's dismissal of her 42 U.S.C. § 1983 action for failure to file an amended complaint. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion a district court's dismissal of an action for failure to file an amended complaint in a timely manner, see Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir.1987), and we vacate and remand.

3

Here, the district court dismissed Rogers's original complaint with leave to amend. Because she did not have copies of the exhibits which were attached to her original complaint, Rogers filed a "Motion for ORDER to Clerk to supply Copy of Exhibits [sic] from Orig. Complaint for Compliance." Rogers attached her amended complaint to this motion, asking for an "order directing the clerk to produce said exhibits [sic] for the amended complaint filed in conjunction with this motion."

4

In light of the liberal construction generally provided pro se plaintiffs, see Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court abused its discretion by failing to construe Rogers's motion as a motion to file an amended complaint, see Eldridge, 832 F.2d at 1137-38. Accordingly, we vacate the district court's dismissal and remand with instructions to the district court to file Rogers's amended complaint.

5

VACATED and REMANDED.

*

The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, Rogers's request for oral argument is denied

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3