Michael J. Mitchell v. Snowden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL J. MITCHELL,
Plaintiff - Appellant,
v.
SNOWDEN, et al.,
Defendants - Appellees.
No. 13-16108
D.C. No. 2:08-cv-01658-JAM-
DAD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted November 18, 2014**
Before: LEAVY, FISHER, and N.R. SMITH, Circuit Judges.
California state prisoner Michael J. Mitchell appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that prison
officials failed to protect him in violation of the Eighth Amendment. We have
jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion a
FILED
DEC 08 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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dismissal for 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 Mitchell’s action
because Mitchell failed to comply with the court’s order to file a response to
defendants’ motion for summary judgment despite being afforded ample time to do
so and being warned that failure to do so could result in dismissal of his action.
See id. at 642-43 (discussing five factors to consider in deciding whether to dismiss
for failure to comply with a court order).
The district court did not abuse its discretion in denying Mitchell’s motions
for appointment of counsel because Mitchell 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).
We treat the document Mitchell filed on July 11, 2014 (docket No. 24) as an
untimely reply brief and sua sponte grant Mitchell permission to file a late brief.
The Clerk shall file the July 11, 2014 document as Mitchell’s reply brief.
We do not consider any documents attached to Mitchell’s reply brief that are
not part of the district court record. See Kirshner v. Uniden Corp. of Am., 842 F.2d
1074, 1077 (9th Cir. 1988).
Defendants’ motion to strike documents attached to Mitchell’s reply brief,
13-16108 2

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filed on July 31, 2014, is denied as unnecessary.
AFFIRMED.
13-16108 3

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