Veronica Gutierrez-Howerton v. Nicole Gonzalez , 656 F. App'x 286 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 3 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VERONICA GUTIERREZ-HOWERTON, No. 14-17035
Plaintiff-Appellant, D.C. No. 2:13-cv-01261-GMN-
PAL
v.
NICOLE GONZALEZ; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief Judge, Presiding
Submitted July 26, 2016**
Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.
Veronica Gutierrez-Howerton appeals pro se from the district court’s
judgment dismissing with prejudice her 42 U.S.C § 1983 action alleging federal
and state law claims. We have jurisdiction under 28 U.S.C. §1291. We review
for an abuse of discretion a dismissal as a discovery sanction under Rule 37 of the
*
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).
Federal Rules of Civil Procedure, Stars’ Desert Inn Hotel & Country Club v.
Hwang, 105 F.3d 521, 524 (9th Cir. 1997), and we affirm.
The district court did not abuse its discretion by dismissing with prejudice
Gutierrez-Howerton’s action for failing to comply with court-ordered discovery
because Gutierrez-Howerton failed to answer defendants’ interrogatories, despite
being ordered to respond and receiving an extension of time to do so, and she
failed to appear at a hearing, despite receiving a continuance and an opportunity to
appear telephonically. See Payne v. Exxon Corp., 121 F.3d 503, 507-8 (9th Cir.
1997) (discussing the five factors the district court must weigh before dismissing a
case for noncompliance with court-ordered discovery). The district court did not
abuse its discretion in finding Gutierrez-Howerton’s noncompliance to be willful.
See Henry v. Gill Indus., Inc., 983 F.2d 943, 948 (9th Cir. 1993) (all that is
required to demonstrate willfulness, bad faith, or fault is “disobedient conduct not
shown to be outside the control of the litigant” (citation and internal quotation
marks omitted)).
AFFIRMED.
2 14-17035