MEMORANDUM**

In this consolidated appeal, Roney Nunes, a California state prisoner, appeals pro se the district court's (1) sua sponte dismissal of his 42 U.S.C. Sec. 1983 action for failure to prosecute under Fed.R.Civ.P. 41(b) and (2) severance of his motions concerning access to the courts and transfer of the motions to the Eastern District of California. We review for an abuse of discretion. McKeever v. Block, 932 F.2d 795, 797 (9th Cir.1991) (Rule 41(b)); Central Valley Typographical Union No. 46 v. McClatchy Newspapers, 762 F.2d 741, 745 (9th Cir.1985) (venue). We affirm in part and vacate and remand in part.

On September 22, 1989, Nunes filed a section 1983 action for damages in district court in which he alleged in part that the defendants conspired to fabricate evidence, suppress exculpatory evidence, and deny him a fair trial. He attached to the complaint a declaration in which he (1) explained that the complaint was conclusory because he was in "lockdown status" and was unable to go to the law library, (2) stated that it was necessary to file the complaint to avoid being barred by the statute of limitations, and (3) asked for leave to file an amended complaint. On February 1, 1990, the district court dismissed the complaint for failure to plead sufficient facts, granted Nunes sixty days to file an amended complaint, and warned him that failure to file an amended complaint would result in dismissal of the action.

Nunes then filed several motions in the district court, alleging that he was having problems with his legal mail. He acknowledged that he had received the court's February 1 order but stated that prison officials were returning other legal mail to the senders, reading all of his legal materials, and refusing to send out his legal documents. He further stated that he was forced to send out his legal mail with the aid of other prisoners and asked the court to hold his section 1983 action in abeyance so that he could exhaust prison administrative remedies concerning access to the courts.

On July 18, 1990, the district court construed the motions concerning access to the courts as a separate complaint and assigned a new case number. The court also dismissed the action as to the claims concerning Nunes's trial for failure to file an amended complaint. The court did not address Nunes's motion to stay his 1983 action. On July 26, 1990, the court transferred the claims concerning access to the courts to the Eastern District of California, finding that venue was proper in that district. Nunes timely appeals from both orders.

* Failure to Prosecute

A district court may dismiss an action sua sponte under Rule 41(b) before service of process for an unreasonable failure to prosecute. McKeever, 932 F.2d at 797. Because the sanction of dismissal is such a harsh penalty, the district court must weigh five factors before imposing dismissal: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir.1987), cert. denied, 488 U.S. 819. If the district court does not explicitly consider these factors, we review the entire record to determine whether the order of dismissal was an abuse of discretion. Id.

Here, the public's interest in expeditious resolution of litigation, the court's need to manage its docket, and the risk of prejudice to the defendants all support the district court's order of dismissal based on Nunes's failure to file an amended complaint. See id. Nevertheless, we hold that Nunes's failure to file an amended complaint was not an unreasonable failure to prosecute. First, Nunes raises claims in his original complaint that have an "arguable basis in law or in fact" and thus are not frivolous. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McKeever, 932 F.2d at 797-98 (refusal to file amended complaint is not an unreasonable failure to prosecute if first complaint was not frivolous). Second, Nunes attempted to prosecute his civil rights actions by informing the district court that he found it difficult to file legal documents and asking for a stay of proceedings. Given these circumstances, and construing his pro se pleadings liberally, see Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir.1989), Nunes may not have understood that he risked dismissal by failing to file an amended complaint. Accordingly, we vacate the district court's order of dismissal.

Because Nunes's action involved improprieties in his criminal proceedings, the district court should have construed the complaint in part as a habeas corpus petition and required exhaustion of state remedies. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Young v. Kenny, 907 F.2d 874, 875-76, 878 (9th Cir.1990), cert. denied, 111 S.Ct. 1090 (1991).1 Because it is clear from the record that Nunes, who is pursuing his direct appeal in state court with the assistance of counsel, has not exhausted state remedies, the district court should stay the 1983 action for damages pending exhaustion of state remedies to prevent the statute of limitations from barring Nunes's claims once his state remedies are exhausted. Young, 907 F.2d at 878.2

To the extent that Nunes contended that he was being denied access to the courts generally, the district court did not err in construing his motions as a separate action and transferring the action to the Eastern District of California on the basis that venue was proper there. See Central Valley, 762 F.2d at 745.3

AFFIRMED in part, VACATED in part, and REMANDED with instructions.