Debra Berry v. Yosemite Community College ( 2020 )

NOT FOR PUBLICATION FILED
SEP 15 2020
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEBRA BERRY, No. 19-16932
Plaintiff-Appellant, D.C. No. 1:16-cv-00411-LJO-EPG
v.
MEMORANDUM*
YOSEMITE COMMUNITY COLLEGE
DISTRICT, a Public Educational Institution,
Junior College; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted September 8, 2020**
Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.
Debra Berry appeals pro se from the district court’s judgment dismissing her
42 U.S.C. § 1983 action alleging constitutional claims. We have jurisdiction under
28 U.S.C. § 1291. We review for an abuse of discretion a dismissal for failure to
*
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).
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 Berry’s action
after Berry failed to comply with the district court’s order to pay monetary
sanctions. See Pagtalunan, 291 F.3d. at 642 (discussing factors to be considered
before dismissing an action for failure to prosecute or failure to comply with a
court order); Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (“[I]t is not
required that the district court make explicit findings in order to show that it has
considered these factors . . . we may review the record independently to determine
if the district court has abused its discretion”).
Berry forfeited her opportunity to appeal the magistrate judge’s order
granting in part defendants’ motion to compel because she did not file an objection
to the magistrate judge’s order. See Simpson v. Lear Astronics Corp., 77 F.3d
1170, 1174 (9th Cir. 1996) (“[A] party who fails to file timely objections to a
magistrate judge’s nondispositive order with the district judge to whom the case is
assigned forfeits its right to appellate review of that order.”).
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); United
2 19-16932
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.”).
Appellees’ request to strike the exhibits to the opening brief, set forth in the
answering brief, is denied.
AFFIRMED.
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