889 F. 2d 1094 - Diamontiney v. J McCarthy

MEMORANDUM**

Appellant Edward Diamontiney, a California state prisoner, appeals the district court's dismissal of his pro se civil rights complaint against Daniel J. McCarthy, director of the California Department of Corrections, and Joe Campoy, warden at Folsom Prison, for failure to prosecute. For the reasons that follow, we affirm.

Diamontiney originally filed a pro se complaint pursuant to 42 U.S.C. Sec. 1983 in December of 1984, claiming that prison officials were denying his right to practice his Native American religion. By an order dated March 18, 1985, Diamontiney's action was stayed by the district court pending class certification for Diamontiney and other Native American inmates at Folsom prison.

A class was certified and a consent decree between that class and the defendants was entered into on March 5, 1987. On January 8, 1988, the district court lifted the March 18 stay, dismissed the action with respect to those members covered by the class, and dismissed as moot the complaints for injunctive relief of those inmates in segregated housing. The district court also gave to those inmates confined to segregated housing who had requested monetary damages 90 days to inform the district court whether they wished to proceed with their action or be faced with dismissal for failure to prosecute.

By an order dated April 12, 1988, and after no activity in Diamontiney's case since the court's prior order, the district court dismissed for failure to prosecute any complaints, including Diamontiney's, filed by inmates confined to segregated housing seeking monetary damages. It is unclear from the record whether the complaint was dismissed with or without prejudice, but this distinction does not affect the analysis of Diamontiney's claim.

Diamontiney contends that the district court erred in dismissing his claim for failure to prosecute. The district court's order dismissing an action for failure to prosecute will be reversed only for an abuse of discretion. Link v. Wabash R.R., 370 U.S. 626, 633 (1962); Ash v. Cvetkov, 739 F.2d 493, 495 (9th Cir.1984), cert. denied, 470 U.S. 1007 (1985).

"In determining whether to dismiss an action for lack of prosecution, the district court is required to weigh several factors: '(1) the public's interest in the expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits and (5) the availability of less drastic sanctions.' " Carey v. King, 856 F.2d 1439, 1440 (9th Cir.1988) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.1986)). The district court gave no indication that it considered these essential factors in making its determination. Such findings, however, are not required. Ash v. Cvetkov, 739 F.2d at 496. "When confronted with this situation we review the record independently in determining whether the district court abused its discretion." Id.

The district court did not abuse its discretion here. Diamontiney did not respond for more than three months after the court's order of January 8, 1988. Diamontiney does not contend that he was without notice of the pending dismissal. Diamontiney had ample time to respond.

In addition, Diamontiney was not unduly prejudiced by the dismissal. The substantive issues raised in Diamontiney's complaint were resolved in a consent decree entered into by the parties in March of 1987. The only issue left unresolved prior to the dismissal was the question of monetary damages. Thus, the major claims presented were settled pursuant to the consent decree and unaffected by the dismissal. The court was within the bounds of its discretion to dismiss the case under these circumstances.

The major thrust of Diamontiney's brief is that prison officials are now violating the terms of the consent decree. This claim was not at issue before the district court and was not a subject matter of the action and dismissal below. Therefore, it was not a final decision of the district court as required by 28 U.S.C. Sec. 1291, and we are without jurisdiction to review the merits of this claim.

AFFIRMED.