FILED
NOT FOR PUBLICATION DEC 5 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN STEVEN SIMON, No. 13-15308
Plaintiff - Appellant, D.C. No. 2:09-cv-00701-JAT
v.
MEMORANDUM*
CITY OF PHOENIX; et al.,
Defendants,
And
BORQUEZ, City of Phoenix Police
Officer, Badge # 8790; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Submitted November 18, 2014**
Before: LEAVY, FISHER, and N.R. SMITH, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
John Steven Simon appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging excessive force. We have
jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion a
dismissal as a sanction, In re Exxon Valdez, 102 F.3d 429, 432 (9th Cir. 1996), and
we affirm.
The district court did not abuse its discretion by dismissing Simon’s action
as a sanction after Simon failed to respond timely or properly to defendants’
discovery request, despite being warned that failure to do so could result in
dismissal of his action. See id. at 433 (setting forth factors for a district court to
consider in determining whether to dismiss as a sanction, and noting that dismissal
is authorized “where the violation is due to willfulness, bad faith, or fault of the
[plaintiff]” (citation and internal quotation marks omitted)).
Contrary to Simon’s contentions, the district court did not abuse its
discretion by quashing Simon’s notices of depositions or denying Simon’s motions
to compel, because Simon failed to comply with the Federal Rules of Civil
Procedure and the district court’s scheduling order. See Fed. R. Civ. P. 31; Laub v.
U.S. Dep’t of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (noting the district
court’s broad discretion in discovery matters and discussing “substantial prejudice”
requirement for reversal).
2 13-15308
We reject as without merit Simon’s contentions that the district court was
biased against him and erroneously ignored a written deposition, and that
defendants did not answer the complaint.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
AFFIRMED.
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