Robert P. Smith, Iii v. California Department of Corrections and Rehabilitation;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT P. SMITH, III,
Plaintiff - Appellant,
v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION; et al.,
Defendants - Appellees,
and
CHERYL SCHUTT, SRN-III; et al.,
Defendants.
No. 12-17619
D.C. No. 3:10-cv-04562-CRB
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted July 21, 2015**
Before: CANBY, BEA, and MURGUIA, Circuit Judges.
FILED
AUG 03 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

-- 1 of 3 --

California state prisoner Robert P. Smith, III, appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate
indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.
§ 1291. We review for an abuse of discretion a 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 Smith’s action
because, despite multiple warnings, Smith failed to comply with the district court’s
orders instructing him to file an amended complaint. See Pagtalunan, 291 F.3d at
642-43 (discussing the five factors for determining whether to dismiss under Fed.
R. Civ. P. 41(b) for failure to comply with a court order); Ferdik v. Bonzelet, 963
F.2d 1258, 1260 (9th Cir. 1992) (although dismissal is a harsh penalty, the district
court’s dismissal should not be disturbed absent “a definite and firm conviction”
that it “committed a clear error of judgment” (citation and internal quotation marks
omitted)).
Because we affirm the district court’s dismissal of Smith’s action for failure
to comply with court orders, we do not consider Smith’s challenges to the district
court’s interlocutory orders. See Al-Torki v. Kaempen, 78 F.3d 1381, 1386 (9th
Cir. 1996) (“[I]nterlocutory orders, generally appealable after a final judgment, are
12-17619 2

-- 2 of 3 --

not appealable after dismissal for failure to prosecute, whether the failure to
prosecute is purposeful or is a result of negligence or mistake.” (citation and
internal question marks omitted)).
Smith’s request to strike the appellees’ supplemental excerpts of record,
filed on January 24, 2014, is denied.
AFFIRMED.
12-17619 3

-- 3 of 3 --