Neway Mangistu v. Morton La Kretz , 678 F. App'x 570 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NEWAY MANGISTU, an individual, No. 12-56860
Plaintiff-Appellant, D.C. No. 2:11-cv-05271-SJO-RZ
v.
MEMORANDUM*
MORTON LA KRETZ, an individual; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted February 14, 2017**
Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.
Neway Mengistu appeals pro se from the district court’s order dismissing his
housing discrimination action sua sponte for failure to prosecute. We have
jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion. Oliva
*
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).
v. Sullivan, 958 F.2d 272, 274 (9th Cir. 1992). We vacate and remand.
The district court dismissed Mengistu’s action with prejudice for failure to
prosecute after Mengistu did not appear on time at a scheduling conference. The
district court failed to consider the adequacy of less drastic sanctions, such as
dismissal without prejudice. See id. (“A district court abuses its discretion if it
imposes a sanction of dismissal without first considering the impact of the sanction
and the adequacy of less drastic sanctions.” (citation and internal quotation marks
omitted)); see also Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992)
(“[D]ismissal is a harsh penalty and, therefore, it should only be imposed in
extreme circumstances.”). Accordingly, we vacate and remand for further
proceedings.
We do not consider documents not filed with the district court. See United
States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not
presented to the district court are not part of the record on appeal.”); Lowry v.
Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003) (setting forth limited exceptions).
Accordingly, Mengistu’s request to supplement the appellate record with
documents not presented to the district court, filed June 12, 2015, is denied.
The parties shall bear their own costs on appeal.
2 12-56860
VACATED and REMANDED.
3 12-56860