Unpublished Disposition, 872 F.2d 430 (9th Cir. 1987)

MEMORANDUM^** 

Thomas E. Spychala (Spychala), a California state prisoner, appeals pro se the district court's dismissal without prejudice of his 28 U.S.C. § 1983 action against various California Department of Corrections officers for failure to prosecute.

Spychala appears to contend that the district court failed to address the merits of his case, dismissal was too harsh, and the magistrate's findings of fact were erroneous (Appellant's brief at 7, 8 and 10).¹  These contentions lack merit.

A district court has the inherent power to dismiss sua sponte for lack of prosecution. Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984) (citing Link v. Wabash, 370 U.S. 626, 630 (1962)). This court reviews dismissals for lack of prosecution under Fed. R. Civ. P. 41(b) for an abuse of discretion. Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) cert. denied, 109 S. Ct. 59 (1988).

A review of the record reveals that on November 19, 1984, the district court ordered each party to file a status report and notified the parties that after the status reports had been filed, the court would issue an order regarding the future course of litigation. Although Spychala timely filed his status report, the court never issued any order. Twenty-two months later, a magistrate sua sponte considered whether the case should be dismissed for lack of prosecution, found that no activity had occurred for at least six months and that Spychala had provided no excuse for his lack of activity. The magistrate recommended that the case be dismissed without prejudice. The district court conducted a de novo review and adopted these findings and recommendations and dismissed the case without prejudice for lack of prosecution. The only possible excuse for Spychala's lack of activity is the district court's failure to issue any order regarding the future course of the litigation, as it stated it would in its November 19, 1984 order. However, Spychala does not contend he relied upon the failure of the district court to enter an order but instead argues the merits, which are not properly before us.

Appellant's motion filed November 24, 1987 concerning the threatened destruction of his legal records is denied. That motion seeks the same relief sought on the merits of the complaint and, like the district court, we do not reach the merits. Appellant may renew his claim in a new action in the district court.

The judgment is AFFIRMED.