NOT FOR PUBLICATION FILED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).
2 14-56884
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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