Carl Bennett v. Felicia Ponce ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 25 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARL BENNETT, No. 21-55679
Plaintiff-Appellant, D.C. No. 2:18-cv-04996-VBF-AS
v.
MEMORANDUM*
FELICIA PONCE, Warden, Terminal Island
FCI, individuals; MEDICAL STAFF AT
TERMINAL ISLAND; TROY
MATTHEWS, Staff Physician Assistant,
individual; MARCOS AIRD, Staff Physician
Assistant, individual; EVELYN CASTRO,
M.D. / C.D., Staff Physician, individual,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Submitted January 18, 2023**
Before: GRABER, PAEZ, and NGUYEN, Circuit Judges.
Former federal inmate Carl Bennett appeals pro se from the district court’s
*
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).
judgment dismissing his action brought under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for failure to
prosecute and comply with court orders. 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). We affirm.
The district court did not abuse its discretion by dismissing Bennett’s action
for failure to prosecute after Bennett failed to file a fifth amended complaint or
inform the court of an affirmative choice not to amend, despite being warned that
failure to do so could result in dismissal and having previously received an
extension of time after failing to meet the initial deadline. See id. at 642–43
(discussing factors to be considered before dismissing a case under Federal Rule of
Civil Procedure 41(b)).
We do not consider Bennett’s contentions concerning the underlying merits
of this action. See Al-Torki v. Kaempen, 78 F.3d 1381, 1386 (9th Cir. 1996)
(holding that interlocutory orders are not appealable after a dismissal for failure to
prosecute, whether the failure to prosecute is purposeful or a result of negligence
or mistake).
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 21-55679
AFFIRMED.
3 21-55679