KEVIN R. SCHRUBB, Sr., AKA Kevin Ray Schrubb v. California Department of Corrections

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN R. SCHRUBB, Sr., AKA Kevin Ray
Schrubb,
Plaintiff-Appellant,
v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION,
official capacity; JEFFREY A. BEARD,
Former Secretary of CDCR, individual and
official capacity; JANE DOE, Correctional
Officer, individual; JOHN DOE 2,
Correctional Officer, individual; JOHN DOE
3, individual; M. MICKENS, Correctional
Officer, individual,
Defendants-Appellees.
No. 21-55754
D.C. No. 2:17-cv-08594-MWF-GJS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted December 8, 2022**
Before: WALLACE, TALLMAN, and BYBEE, Circuit Judges.
* 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
DEC 15 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Kevin R. Schrubb, Sr., appeals pro se from the district court’s judgment
dismissing for failure to prosecute and comply with court orders his 42 U.S.C.
§ 1983 action alleging various 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 Cir. 2002). We affirm.
The district court did not abuse its discretion by dismissing Schrubb’s action
after Schrubb failed to file an amended complaint, inform the court of an
affirmative choice not to amend, or file a request for an additional extension of
time, despite being warned that failure to do so would result in dismissal and
having previously received an extension of time after failing to meet the initial
deadline. See id. at 642-43 (discussing factors to consider in determining whether
to dismiss under Fed. R. Civ. P. 41(b) for failure to comply with a court order; this
court may review the record independently to determine if the district court abused
its discretion).
The district court did not abuse its discretion by partially granting Schrubb’s
request for an extension of time to file an amended complaint. See FTC v. Gill,
265 F.3d 944, 954-55, 957 (9th Cir. 2001) (setting forth standard of review and
explaining that a district court has broad discretion to control its docket).
We lack jurisdiction to consider the district court’s post-judgment order
denying Schrubb’s Federal Rule of Civil Procedure 60(b) motion because Schrubb

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failed to file an amended or separate notice of appeal. See Fed. R. App. P.
4(a)(4)(B)(ii); TAAG Linhas Aereas de Angola v. Transamerica Airlines, Inc., 915
F.2d 1351, 1354 (9th Cir. 1990) (explaining that when a Rule 60(b) motion is filed
after the notice of appeal, “an appeal specifically from the ruling on the motion
must be taken if the issues raised in that motion are to be considered by the Court
of Appeals”).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.

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