Tony Asberry v. MATTHEW CATE, Secretary of Corrections of the C.D.C.R.;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TONY ASBERRY,
Plaintiff - Appellant,
v.
MATTHEW CATE, Secretary of
Corrections of the C.D.C.R.; et al.
Defendants - Appellees.
No. 15-15113
D.C. No. 2:11-cv-02462-KJM-
KJN
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Submitted March 15, 2016**
Before: GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.
Tony Asberry, a California state prisoner, appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging federal and state
law claims. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse
FILED
MAR 24 2016
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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of discretion the imposition of discovery sanctions under Federal Rule of Civil
Procedure 37. Payne v. Exxon Corp., 121 F.3d 503, 507 (9th Cir. 1997).
We affirm.
The district court did not abuse its discretion by dismissing Asberry’s action
under Fed. R. Civ. P. 37(d) on the basis of Asberry’s failure to appear at a court-
ordered deposition because Asberry’s failure to appear was willful, and the district
court had imposed monetary sanctions against Asberry for his previous failure to
appear and warned Asberry of the possibility of terminating sanctions. See Fed. R.
Civ. P. 37(d); Payne, 121 F.3d at 507 (setting forth five factors courts must weigh
when dismissing a case for noncompliance with court-ordered discovery under
Rule 37 and noting that the noncompliance must be due to “willfulness, fault, or
bad faith”).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
All pending requests are denied.
AFFIRMED.
15-15113 2

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