97 F. 3d 1460 - Rodriguez v. Cook Spt
97 F3d 1460 Rodriguez v. Cook Spt
97 F.3d 1460
Jerardo RODRIGUEZ, Plaintiff-Appellant,
v.
COOK, Director; George Baldwin, SPT; H.O. Scroghan,
Defendants-Appellees.
No. 95-36166.
United States Court of Appeals, Ninth Circuit.
Submitted Sept. 23, 1996.*
Decided Sept. 25, 1996.
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Before: FLETCHER, BRUNETTI, and NOONAN, Circuit Judges.
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MEMORANDUM**
Oregon state prisoner Jerardo Rodriguez appeals pro se the district court's Fed.R.Civ.P. 41(b) dismissal of his 42 U.S.C. § 1983 action with prejudice for failing to comply with an order requiring Rodriguez to timely file an amended complaint. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court's dismissal for abuse of discretion, see Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.), cert. denied, 506 U.S. 915 (1992), and we affirm.
Rodriguez contends that the district court abused its discretion by not considering less drastic sanctions before it dismissed his action with prejudice. This contention lacks merit.
Here, the district court imposed a less drastic sanction to dismissal by first dismissing Rodriguez's complaint without prejudice to filing an amended complaint. See id. at 1262. The district court also explicitly warned Rodriguez that his failure to file an amended complaint within thirty days of its order would result in the dismissal of his action with prejudice to filing another in forma pauperis action raising identical claims. Id.; see also Malone v. United States Postal Serv., 833 F.2d 128, 132-33 (9th Cir.1987), cert. denied, 488 U.S. 819 (1988). Moreover, the district court advised Rodriguez of the deficiencies in his complaint and what he had to allege to state cognizable claims. Accordingly, the district court did not abuse its discretion by dismissing Rodriguez's action for failing to timely file an amended complaint. See Ferdik, 963 F.2d at 1262-63.
AFFIRMED.1
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a); 9th Cir.R. 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
We deny defendants' motion to file an appellee's brief. Because of our disposition of this appeal, we do not consider the applicability, if any, of the Prison Litigation Reform Act, Pub.L. No. 104-134, 110 Stat. 1321 (1996), to this appeal