Michael Angelo Lena v. People of the State of California;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL ANGELO LENA,
Plaintiff-Appellant,
v.
PEOPLE OF THE STATE OF
CALIFORNIA; et al.,
Defendants-Appellees.
No. 17-16367
D.C. No. 1:16-cv-01036-LJO-SKO
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief Judge, Presiding
Submitted October 22, 2018**
Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.
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
* 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).
FILED
OCT 26 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 17-16367
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, 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)).
We do not consider Lena’s renewed motion to appoint pro bono counsel set

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forth in his opening brief. In Docket Entry No. 11, this court denied Lena’s motion
for appointment of counsel and ordered that no motions for reconsideration,
clarification, or modification of the denial shall be filed or entertained.
Lena’s request that his case be transferred to the Northern District of
California, set forth in his opening brief, is denied.
AFFIRMED.

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