Lena v. People, 102618 FED9, 17-16367

Docket Nº:17-16367
Party Name:MICHAEL ANGELO LENA, Plaintiff-Appellant, v. PEOPLE OF THE STATE OF CALIFORNIA; et al., Defendants-Appellees.
Judge Panel:Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.
Case Date:October 26, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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MICHAEL ANGELO LENA, Plaintiff-Appellant,

v.

PEOPLE OF THE STATE OF CALIFORNIA; et al., Defendants-Appellees.

No. 17-16367

United States Court of Appeals, Ninth Circuit

October 26, 2018

NOT FOR PUBLICATION

Submitted October 22, 2018 [**]

Appeal from the United States District Court for the Eastern District of California Lawrence J. O'Neill, Chief Judge, Presiding D.C. No. 1:16-cv-01036-LJO-SKO

Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.

MEMORANDUM [*]

California state prisoner Michael Angelo Lena appeals pro se from the district court's judgment dismissing his 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. Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir. 2002) (dismissal for failure to comply with a court order); Al-Torki v. Kaempen, 78 F.3d 1381, 1384 (9th Cir. 1996) (dismissal for failure to prosecute). We affirm.

The district court did not abuse its discretion by dismissing Lena's action for failure to prosecute because Lena failed to respond to the district court's order denying reconsideration of the screening order and requiring Lena to file an amended complaint or proceed only on the cognizable First Amendment and Eighth Amendment claims. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1064-65 (9th Cir. 2004) ("The failure of the plaintiff eventually to respond to the court's ultimatum-either by amending the complaint or by indicating to the court that [he] will not do so-is properly met with the sanction of a Rule 41(b) dismissal."); Al-Torki, 78 F.3d at 1384 (discussing the five factors for determining whether to dismiss under Fed.R.Civ.P. 41(b) for failure to prosecute).

Because we affirm the district court's dismissal of Lena's action for failure to prosecute, we do not consider his arguments challenging the district court's screening order. See id. at 1386 ("[I]nterlocutory orders...

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