Benjamin Cannon v. City of Petaluma ( 2015 )

FILED
NOT FOR PUBLICATION JUL 09 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BENJAMIN PHILIP CANNON, No. 13-16609
Plaintiff - Appellant, D.C. No. 3:11-cv-00651-JST
v.
MEMORANDUM*
CITY OF PETALUMA; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Submitted June 22, 2015**
Before: HAWKINS, GRABER, and W. FLETCHER, Circuit Judges.
Benjamin Philip Cannon appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging federal and state law claims arising
out of traffic stops and a subsequent search warrant. We have jurisdiction under 28
*
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, and denies Cannon’s request for oral argument, set forth in
his opening brief. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1291. We review for an abuse of discretion a dismissal for failure to
comply with a court order, Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir.
2002), and we affirm.
The district court did not abuse its discretion by dismissing Cannon’s action
with prejudice because, despite multiple opportunities, Cannon repeatedly failed to
comply with the district court orders instructing him to omit allegations and claims
related to issues that had previously been dismissed with prejudice. See
Pagtalunan, 291 F.3d at 642-43 (discussing the five factors for determining
whether to dismiss for failure to comply with a court order); Ferdik v. Bonzelet,
963 F.2d 1258, 1260 (9th Cir. 1992) (although dismissal is a harsh penalty, the
district court’s dismissal should not be disturbed absent “a definite and firm
conviction” that it “committed a clear error of judgment” (citation and internal
quotation marks omitted)).
Because we affirm the district court’s dismissal of Cannon’s action for
failure to comply with court orders, we do not consider Cannon’s challenges to the
district court’s interlocutory orders. See Al-Torki v. Kaempen, 78 F.3d 1381, 1386
(9th Cir. 1996) (“[I]nterlocutory orders, generally appealable after a final
judgment, are not appealable after a dismissal for failure to prosecute, whether the
2 13-16609
failure to prosecute is purposeful or is a result of negligence or mistake.” (citation
and internal question marks omitted)).
AFFIRMED.
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