Michael Smith v. State of California

FILED
NOT FOR PUBLICATION SEP 24 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

MICHAEL LENOIR SMITH, No. 11-17466

Plaintiff - Appellant, D.C. No. 2:05-cv-01257-GEB-
CKD
v.

STATE OF CALIFORNIA; et al., MEMORANDUM *

Defendants - Appellees.

Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding

Submitted September 10, 2012 **

Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

Michael Lenior Smith, a California state prisoner, appeals pro se from

district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action

alleging constitutional violations by various prison officials. We have jurisdiction

*
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).
under 28 U.S.C. § 1291. We review for an abuse of discretion a dismissal for

failure to prosecute under Fed. R. Civ. P. 41(b). Henderson v. Duncan, 779 F.2d

1421, 1423 (9th Cir. 1986). We affirm.

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

without prejudice for failure to prosecute because Smith failed to file an amended

pretrial statement by the deadline set by the district court. See id. (listing factors to

guide the court’s decision whether to dismiss under Rule 41(b)).

Because we affirm the district court’s dismissal under Rule 41(b), we do not

consider Smith’s challenges to the district court’s interlocutory orders. See Al-

Torki v. Kaempen, 78 F.3d 1381, 1386 (9th Cir. 1996) (after dismissal for failure to

prosecute, interlocutory orders are not appealable regardless of whether failure to

prosecute was purposeful).

AFFIRMED.

2 11-17466