SHANNON LEWIS AVERY, Sr. v. G. Gonzales; J. Amaya

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHANNON LEWIS AVERY, Sr.,
Plaintiff - Appellant,
v.
G. GONZALES; J. AMAYA,
Defendants - Appellees.
No. 13-16343
D.C. No. 1:07-cv-01175-LJO-GSA
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted July 22, 2014**
Before: GOODWIN, CANBY, and CALLAHAN, Circuit Judges.
Former California state prisoner Shannon Lewis Avery, Sr., appeals pro se
from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging
First and Eighth Amendment violations. We have jurisdiction under 28 U.S.C.
§ 1291. We review for an abuse of discretion a dismissal for failure to prosecute or
FILED
AUG 01 2014
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).

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failure to comply with a court order. Pagtalunan v. Galaza, 291 F.3d 639, 640-41
(9th Cir. 2002). We affirm.
The district court did not abuse its discretion in dismissing Avery’s action
because Avery failed to prosecute the action and failed to comply with the court’s
order to respond to defendants’ written discovery. See id. at 642-43 (discussing
five factors relevant to decide whether to dismiss for failure to prosecute or to
comply with a court order).
The district court did not abuse its discretion in denying Avery’s motion for
appointment of counsel because Avery failed to demonstrate exceptional
circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (setting
forth standard of review and explaining “exceptional circumstances” requirement).
The district court did not abuse its discretion in denying Avery’s motion to
transfer venue. See 28 U.S.C. § 1404(a) (providing for transfer to a district where
an action might have been brought); Jones v. GNC Franchising, Inc., 211 F.3d
495, 498 (9th Cir. 2000) (setting forth standard of review); see also 28 U.S.C.
§ 1391(b) (listing grounds for venue).
AFFIRMED.
13-16343 2

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