Raul Mendez v. Community Health Clinics, Inc. ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 29 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAUL MENDEZ, No. 21-35179
Plaintiff-Appellant, D.C. No. 1:16-cv-00425-DCN
v.
MEMORANDUM*
COMMUNITY HEALTH CLINICS, INC.,
doing business as Terry Reilly Health
Services,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Idaho
David C. Nye, District Judge, Presiding
Submitted June 15, 2022**
Before: SILVERMAN, WATFORD, and FORREST, Circuit Judges.
Raul Mendez appeals pro se from the district court’s judgment dismissing
his employment discrimination action as a discovery sanction under Federal Rule
of Civil Procedure 37(b). We have jurisdiction under 28 U.S.C. § 1291. We
*
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).
review for an abuse of discretion. Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d
1007, 1022 (9th Cir. 2002). We affirm.
The district court did not abuse its discretion in dismissing Mendez’s action
after Mendez twice failed to appear for his deposition and the court found that
Mendez’s behavior was willful and in bad faith. See Fed. R. Civ. P. 37(b)(2); In re
Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1233 (9th Cir.
2006) (“Rule 37 sanctions, including dismissal, may be imposed where the
violation is due to willfulness, bad faith, or fault of the party.” (citation and
internal quotation marks omitted)); Rio Props., 284 F.3d at 1022 (discussing five
factors courts must weigh in determining whether to dismiss a case for failure to
comply with a court order).
We reject as meritless Mendez’s contentions that in dismissing this action as
a sanction the district court was biased against him, failed to construe his pro se
filings liberally, or failed to comply with the Federal Rules of Civil Procedure and
the district court’s local rules.
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).
In light of our disposition, we do not consider Mendez’s challenge to the
district court’s interlocutory orders. See Al-Torki v. Kaempen, 78 F.3d 1381, 1386
2 21-35179
(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 and
internal quotation marks omitted)).
Community Health Clinics, Inc.’s request for sanctions, set forth in the
answering brief, is denied.
AFFIRMED.
3 21-35179