Roberto Herrera v. Huu Nguyen

FILED
NOT FOR PUBLICATION JUL 01 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERTO HERRERA, No. 14-16371
Plaintiff - Appellant, D.C. No. 1:12-cv-01565-SKO
v.
MEMORANDUM*
HUU NGUYEN; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Sheila K. Oberto, Magistrate Judge, Presiding**
Submitted June 22, 2015***
Before: HAWKINS, GRABER, and W. FLETCHER, Circuit Judges.
California state prisoner Roberto Herrera appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Herrera consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
indifference to his serious medical needs and retaliation. We have jurisdiction
under 28 U.S.C. § 1291. We review for an abuse of discretion the district court’s
dismissal for failure to comply with a court order, Pagtalunan v. Galaza, 291 F.3d
639, 640 (9th Cir. 2002), and we affirm.
The district court did not abuse its discretion by dismissing Herrera’s action
without prejudice after Herrera failed to file a legible amended pleading in
compliance with the local rules, despite being warned that failure to do so could
result in dismissal. See E.D. Cal. R. 130(b) (documents filed with the court must
be presented legibly); Pagtalunan, 291 F.3d at 640, 642-43 (discussing the five
factors for determining whether to dismiss a case for failure to comply with a court
order and noting that dismissal should not be disturbed absent “a definite and firm
conviction” that the district court “committed a clear error of judgment” (citation
and internal quotation marks omitted)).
Because we affirm the district court’s dismissal for failure to comply with a
court order, we do not consider Herrera’s challenge to the district court’s order
dismissing his first amended complaint. See Al–Torki v. Kaempen, 78 F.3d 1381,
1386 (9th Cir. 1996) (interlocutory orders cannot be appealed after a dismissal for
failure to prosecute, even if the failure is negligent or due to a mistake).
AFFIRMED.
2 14-16371