Unpublished Disposition, 874 F.2d 815 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 874 F.2d 815 (9th Cir. 1987)

Aldo ABATECOLA, Plaintiff-Appellant,v.UNITED STATES VETERANS ADMINISTRATION, et al. Defendant-Appellee.

No. 87-6619.

United States Court of Appeals, Ninth Circuit.

Submitted*  April 27, 1989.Decided May 1, 1989.

Before HUG, SCHROEDER and LEAVY, Circuit Judges.


MEMORANDUM** 

Aldo Abatecola appeals pro se the district court's dismissal of his action without prejudice for failure to prosecute. We affirm.

Aldo Abatecola sued the Veterans Administration (VA), Thomas Turnage, the Equal Employment Opportunity Commission (EEOC), and Clarence Thomas. In his first amended complaint, he attempted to set forth three causes of action. First, he alleged that he had been terminated from his employment with the VA for discriminatory reasons in violation of his rights under 42 U.S.C. § 2000(e) et seq. (Title VII). Second, he alleged that the defendants had violated his first, fifth and eighth amendment rights by failing to act upon his Title VII complaints when he filed them with the EEOC. Third, he alleged that he had been intentionally defamed by the VA because of negative statements made by his coworkers.

The defendants moved to dismiss Abatecola's action. On September 16, 1987, the district court dismissed Abatecola's second and third causes of action with prejudice. The court then construed the defendants' motion to dismiss Abatecola's first cause of action as a motion for a more definite statement, granted that motion, and stated that Abatecola had thirty days to file a second amended complaint or his action would be dismissed with prejudice. The court also told Abatecola what information needed to be included in the second amended complaint.

Abatecola did not file a second amended complaint in thirty days. On October 30, 1987, the district court dismissed his action without prejudice for failure to prosecute under Fed.Local Ct.Rules (C.D. Cal.) 12, and for Abatecola's failure to comply with the September 16 order. Abatecola timely appeals.

We review a district court's order dismissing an action for failure to prosecute for an abuse of discretion. Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).

Given the district court's efforts to explain to the plaintiff the consequences of his failure to amend and given the trial court's imposition of a sanction less severe than dismissal with prejudice, we hold there was no abuse of discretion. See Ash v. Cvetkov, 739 F.2d 493, 497 (9th Cir. 1984), cert. denied, 470 U.S. 1007 (1985).

Abatecola also seeks to appeal the district court's September 16th order, granting the defendants' motion for a more definite statement as to his first cause of action, and dismissing his second and third cause of action. Ordinarily, we would review the district court's rulings in the September 16th order under the theory that those interlocutory rulings became merged into the October 30th final judgment and became appealable. Ash, 739 F.2d at 497 (citing Sackett & Kvan, Inc. v. Beaman, 399 F.2d 884, 889 n. 6 (9th Cir. 1968)). However, the "interlocutory rulings do not merge into a judgment of dismissal without prejudice for failure to prosecute" and are, therefore, not properly before this court. Id. at 498; Huey v. Teledyne, Inc., 608 F.2d 1234, 1240 (9th Cir. 1979), cert. denied, 458 U.S. 1106 (1982).

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

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