Frank Konarski v. City of Tucson

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                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        SEP 18 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

FRANK KONARSKI; et al.,                          No.   16-16789

                Plaintiffs-Appellants,           D.C. No. 4:16-cv-00592-JGZ

 v.
                                                 MEMORANDUM*
CITY OF TUCSON; et al.,

                Defendants-Appellees.

                    Appeal from the United States District Court
                             for the District of Arizona
                    Jennifer G. Zipps, District Judge, Presiding

                          Submitted September 12, 2018**

Before:      LEAVY, HAWKINS, and TALLMAN, Circuit Judges.

      Frank, Gabriela, John, and Frank E. Konarski appeal pro se from the district

court’s order dismissing their action for failure to comply with a vexatious litigant

pre-filing order. We have 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), and


      *
             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).
we affirm.

      The district court did not abuse its discretion in dismissing the Konarskis’

action because the Konarskis failed to comply with the pre-filing order that

declared them vexatious litigants and required them to obtain leave of court before

filing a complaint in the district court. See id. at 642 (discussing the factors for

determining whether to dismiss for failure to comply with a court order); In re

Fillbach, 223 F.3d 1089, 1090 (9th Cir. 2000) (a district court has discretion to

dismiss an action for failure to comply with a vexatious litigant pre-filing order).

      We reject as unsupported by the record the Konarskis’ contentions that the

district court violated due process by enforcing the pre-filing order without issuing

an order to show cause, and expanded the requirements of the pre-filing order

entered against them.

      Because we affirm, we deny as unnecessary the Konarskis’ request for

reassignment to a new district judge on remand, set forth in their opening brief.

      Appellees’ motion for leave to file an answering brief (Docket Entry No. 15)

is denied.

      AFFIRMED.




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