Susan Polk v. Jeffery Beard

                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 3 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

SUSAN MAE POLK,                                 No.    14-56884

                Plaintiff-Appellant,            D.C. No. 5:13-cv-01211-BRO

 v.
                                                MEMORANDUM*
JEFFREY A. BEARD; et al.,

                Defendants-Appellees.

                  Appeal from the United States District Court
                      for the Central District of California
                Beverly Reid O’Connell, District Judge, Presiding

                             Submitted June 26, 2017**

Before:      PAEZ, BEA, and MURGUIA, Circuit Judges.

      California state prisoner Susan Mae Polk appeals pro se from the district

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

§ 1983 action alleging constitutional violations. We have jurisdiction under 28

U.S.C. § 1291. We review for an abuse of discretion. McHenry v. Renne, 84 F.3d



      *
             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).
1172, 1177 (9th Cir. 1996). We affirm.

      The district court did not abuse its discretion by dismissing Polk’s action

because, after the magistrate judge identified the deficiencies in her prior

complaints and provided two opportunities to amend, Polk’s second amended

complaint did not comply with the court’s order directing her to file a complaint in

compliance with Federal Rule of Civil Procedure 8(a). See id. (affirming dismissal

under Rule 8 of plaintiff’s complaint because it failed to set forth simple, concise

and direct averments); see also Hearns v. San Bernardino Police Dep’t., 530 F.3d

1124, 1129 (9th Cir. 2008) (in deciding whether a district court abused its

discretion by dismissing under Rule 41(b), “we must necessarily consider the legal

question of whether the district court correctly dismissed without prejudice the

original complaint on Rule 8 grounds”). Contrary to Polk’s contentions, the

magistrate judge considered each of the relevant factors, including the availability

of less drastic sanctions, before recommending that the action be dismissed with

prejudice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (setting

forth factors to consider before dismissing an action for failure to comply with a

court order).

      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).


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      Polk’s motion to substitute appellee Beard is denied, because Polk sued

Beard in his official and individual capacities. See Fed. R. App. P. 43(c)(2).

      AFFIRMED.




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