James Brown v. Rawson-Neal Psychiatric Hosp.

I respectfully dissent. In my view, we should exercise discretion to consider the Rule 41(b) issue; the- district court abused its discretion by dismissing the case as a 'sanction under Rule 41(b), rather- than on the merits under Rule 12(b)(6); and on the merits the district court erred in ruling that Plaintiff failed to state a federal claim. *1148Accordingly, I would reverse and remand for further proceedings.

1. We have discretion to address Rule 41(b).

As the majority recognizes, we have discretion to consider the Rule 41(b) issue. United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992). At…