NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 25 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RODNEY D. MOORE, No. 20-16504

Plaintiff-Appellant, D.C. No. 2:19-cv-04543-JAT-DMF

v. MEMORANDUM* CHARLES L. RYAN; UNKNOWN PARTIES, T.S.U. Officers at Arizona Department of Corrections; DAVID SHINN, Director, ADOC Director; HERNANDEZ, Named as Hernandez John/Jane Doe; JACKIE HUTCHINSON; C. R. GLYNN,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona James A. Teilborg, District Judge, Presiding

Submitted August 17, 2022**

Before: S.R. THOMAS, PAEZ, and LEE, Circuit Judges.

Arizona state prisoner Rodney D. Moore appeals pro se from the district

court’s judgment dismissing for failure to comply with a court order his 42 U.S.C.

* 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). § 1983 action alleging Eighth Amendment violations. We have jurisdiction under

28 U.S.C. § 1291. We review for an abuse of discretion a dismissal under Federal

Rule of Civil Procedure 41(b). Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir.

2002). We vacate and remand.

The district court dismissed Moore’s action for failure to comply with its

April 29, 2020 order directing records officer Jackie Hutchinson to respond to

Moore’s subpoena and instructing Moore to file a notice of submission within sixty

days of Hutchinson’s response. However, because Hutchinson never filed a

response to Moore’s subpoena, Moore could not have filed a notice of submission.

See Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 891 (9th Cir. 2019)

(setting forth factors the district court must consider in dismissing under Rule

41(b) and noting that by the plain text of the rule, dismissal “requires a court order

with which an offending plaintiff failed to comply”). We vacate the judgment and

remand for further proceedings.

Moore’s motion to appoint counsel (Docket Entry No. 5) is denied.

Appellees will bear the costs on appeal.

VACATED and REMANDED.

2 20-16504