Shayla Duke v. Clyde Saiki ( 2021 )

NOT FOR PUBLICATION FILED
NOV 17 2021
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAYLA DUKE; DAVID DUKE, No. 20-35155
Plaintiffs-Appellants, D.C. No. 6:17-cv-00770-MK
v.
MEMORANDUM*
CLYDE SAIKI, in his personal and official
capacity as former Director of Department
of Human Services, State of Oregon; et al.,
Defendants-Appellees,
and
DEPARTMENT OF HUMAN SERVICES;
et al.,
Defendants.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Submitted November 8, 2021**
Before: CANBY, TASHIMA, and MILLER, Circuit Judges.
*
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).
Shayla Duke appeals pro se from the district court’s judgment dismissing the
Dukes’ action alleging federal claims arising out of the reduction or termination of
government benefits. We have jurisdiction under 28 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). We affirm.
The district court did not abuse its discretion by dismissing the Dukes’
action after the Dukes failed to file a fourth amended complaint as ordered or
inform the court of an affirmative choice not to amend. See id. at 640, 642-43(discussing factors to consider in determining whether to dismiss under Fed. R.
Civ. P. 41(b) for failure to comply with a court order; this court may review the
record independently to determine if the district court abused its discretion); see
also Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004) (“The
failure of the plaintiff eventually to respond to the court’s ultimatum—either by
amending the complaint or by indicating to the court that it will not do so—is
properly met with the sanction of a Rule 41(b) dismissal.”).
In light of our disposition, we do not consider Shayla Duke’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 final
judgment, are not appealable after a dismissal for failure to prosecute, whether the
failure to prosecute is purposeful or is a result of negligence or mistake.” (citation
2 20-35155
and internal quotation marks omitted)).
We reject as meritless Shayla Duke’s contentions regarding the magistrate
judge’s jurisdiction. See 28 U.S.C. § 636(b)(1).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Shayla Duke’s request for appellate counsel, set forth in her opening brief, is
denied.
All pending motions are denied.
AFFIRMED.
3 20-35155