Raymond Eugene Peyton v. DAVE DAVEY, Warden;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAYMOND EUGENE PEYTON,
Plaintiff-Appellant,
v.
DAVE DAVEY, Warden; et al.,
Defendants-Appellees.
No. 15-55968
D.C. No. 5:13-cv-00424-RGK-JPR
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted August 16, 2016**
Before: O’SCANNLAIN, LEAVY, and CLIFTON, Circuit Judges.
California state prisoner Raymond Eugene Peyton appeals pro se from the
district court’s judgment dismissing for failure to prosecute his 42 U.S.C. § 1983
action alleging Eighth Amendment claims related to prison overcrowding. We
have jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion. Al-
FILED
AUG 26 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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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Torki v. Kaempen, 78 F.3d 1381, 1384 (9th Cir. 1996). We vacate and remand.
The district court dismissed the action with prejudice for failure to prosecute
because it found that Peyton failed to file a third amended complaint by the
deadline set in the April 14, 2015 order. On appeal, Peyton argues that he did not
receive the April 14, 2015 order until over three weeks after the deadline for filing
a third amended complaint had passed. Peyton has submitted documents to this
court in support of this argument. Accordingly, we vacate the judgment and
remand to the district court to allow it to consider Peyton’s explanation and
documents in the first instance. See Carey v. King, 856 F.2d 1439, 1440 (9th Cir.
1988) (per curiam) (setting forth five factors to weigh in determining whether to
dismiss action for lack of prosecution).
We express no opinion on the merits of the claims in Peyton’s second
amended complaint.
We do not consider Peyton’s contentions regarding his first amended
complaint or his claims against defendant Schwartz, which were addressed in a
prior appeal. See Peyton v. Brown, 584 F. App’x 603, 604 (9th Cir. 2014).
Peyton’s April 7, 2016 motion to substitute party is denied without prejudice
to renewal in the district court.
15-55968 2

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Peyton’s July 28, 2016 motion for summary affirmance is denied as moot.
VACATED and REMANDED.
15-55968 3

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