Howard Ellis v. James Benedetti , 645 F. App'x 602 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 24 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOWARD ELLIS, No. 15-15034
Plaintiff - Appellant, D.C. No. 3:08-cv-00657-MMD-
WGC
v.
JAMES BENEDETTI; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Submitted March 15, 2016**
Before: GOODWIN, LEAVY, and CHRISTEN Circuit Judges.
Nevada state prisoner Howard Ellis appeals pro se from the district court’s
judgment dismissing for failure to comply with a discovery order his 42 U.S.C.
§ 1983 action alleging various constitutional claims relating to his conditions of
confinement. We have jurisdiction under 28 U.S.C. § 1291. We review for an
*
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).
abuse of discretion a dismissal under Fed. R. Civ. P. 37. Anheuser-Busch, Inc. v.
Nat. Beverage Distribs., 69 F.3d 337, 348 (9th Cir. 1995). We affirm.
The district court did not abuse its discretion by dismissing Ellis’ action
because Ellis repeatedly failed to comply with the district court’s order to provide
complete responses to defendants’ written discovery requests. See id. at 348(setting forth the five factors for determining whether to dismiss under Fed. R. Civ.
P. 37 for failure to comply with a discovery order).
The district court did not abuse its discretion by denying Ellis’ motions for
entry of default and for default judgment on the basis of defendants’ untimely
answer to the amended complaint because defendants were actively litigating the
case, Ellis had filed a motion to alter the judgment that was still pending, and
public policy favors disposition on the merits. See Eitel v. McCool, 782 F.2d 1470,
1471-72 (9th Cir. 1986) (setting forth the standard of review and factors for
determining whether to enter default judgment).
The district court did not abuse its discretion by denying Ellis’ requests for
appointment of counsel because Ellis failed to demonstrate exceptional
circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting
forth standard of review and “exceptional circumstances” requirement).
The district court did not abuse its discretion by denying Ellis’ motion to
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recuse the magistrate judge and district court judge because Ellis failed to establish
that the judges’ impartiality might reasonably be questioned. See Pesnell v.
Arsenault, 543 F.3d 1038, 1043-44 (9th Cir. 2008) (setting forth standard of review
and factors for evaluating a motion to recuse).
We reject as unsupported Ellis’ contention that the district court erred in
granting defendants’ motion to compel discovery after defendants’ counsel failed
to meet and confer in compliance with the local rules. See Delange v. DutraConst.
Co., Inc., 183 F.3d 916, 919 n.2 (9th Cir. 1999) (explaining that a district court has
“broad discretion” in interpreting and applying its local rules).
Ellis’ motion for judicial notice, filed on February 10, 2015, is denied.
AFFIRMED.
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