FILED
NOT FOR PUBLICATION MAY 01 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL A. VILLALOBOS, No. 13-17085
Plaintiff - Appellant, D.C. No. 3:12-cv-00138-MEJ
v.
MEMORANDUM*
TOM VILSACK, Secretary, Department
of Agriculture, (Forest Service), Agency,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Maria-Elena James, Magistrate Judge, Presiding**
Submitted April 22, 2015***
Before: GOODWIN, BYBEE, and CHRISTEN, Circuit Judges.
Michael A. Villalobos appeals pro se from the district court’s order
dismissing his employment action alleging retaliation and discrimination. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion.
Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir. 2002) (dismissal for failure to
comply with a court order); Hernandez v. City of El Monte, 138 F.3d 393, 398 (9th
Cir. 1998) (dismissal for failure to prosecute). We affirm.
The district court did not abuse its discretion by dismissing Villalobos’
action without prejudice after Villalobos failed to respond timely to the district
court’s order to show cause regarding his failure to prosecute and meet court
deadlines, despite being warned that failure to respond could result in dismissal.
See Pagtalunan, 291 F.3d at 642 (setting forth factors for a district court to
consider in determining whether to dismiss for failure to comply with a court order
or failure to prosecute); see also Hernandez, 138 F.3d at 400-01 (a presumption of
prejudice arises from a plaintiff’s failure to prosecute or provide a non-frivolous
excuse for delay); Ash v. Cvetkov, 739 F.2d 493, 497 (9th Cir. 1984) (“[D]ismissal
without prejudice is a more easily justified sanction for failure to prosecute.”).
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.
2 13-17085