Thomas Goff v. Gamez

NOT FOR PUBLICATION FILED
APR 27 2021
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS LAWRENCE GOFF, No. 19-17494
Plaintiff-Appellant, D.C. No. 1:15-cv-00937-AWI-EPG
v.
MEMORANDUM*
GAMEZ, Sergeant at Mountain Home
Conservation Camp #10,
Defendant-Appellee,
and
HARRIS, Correctional Officer; et al.,
Defendants.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted April 20, 2021**
Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges.
Former California state prisoner Thomas Lawrence Goff appeals pro se from
*
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).
the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging
excessive force and failure to protect. We have jurisdiction under 28 U.S.C.
§ 1291. We review for an abuse of discretion a dismissal for failure to prosecute.
Al-Torki v. Kaempen, 78 F.3d 1381, 1384 (9th Cir. 1996). We affirm.
The district court did not abuse its discretion by dismissing Goff’s action for
failure to prosecute after Goff failed to appear for a pretrial scheduling hearing and
failed to respond to an order to show cause, despite being warned that failure to
comply with the court’s orders would result in dismissal. See Pagtalunan v.
Galaza, 291 F.3d 639, 640-43 (9th Cir. 2002) (discussing factors to be considered
before dismissing a case for failure to prosecute; a district court’s dismissal should
not be disturbed absent “a definite and firm conviction” that it “committed a clear
error of judgment” (citations and internal quotation marks omitted)).
Because we affirm the district court’s dismissal of Goff’s action for failure
to prosecute, we do not consider his arguments challenging the district court's
interlocutory orders regarding appointment of counsel. See Al-Torki, 78 F.3d at
1386 (“[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)).
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We lack jurisdiction to consider the district court’s denial of Goff’s post-
judgment motion for relief because Goff failed to amend his notice of appeal or file
a new notice of appeal after the motion was denied. See Whitaker v. Garcetti, 486
F.3d 572, 585 (9th Cir. 2007); see also Fed. R. App. P. 4(a)(1)(A) (notice of appeal
must be filed within 30 days after entry of the judgment or order appealed from);
Fed. R. App. P. 4(a)(4)(B)(ii).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments or allegations raised for the first time on appeal.
See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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