Unpublished Disposition, 875 F.2d 318 (9th Cir. 1985)

MEMORANDUM^** 

Martin Maurer ("Maurer") appeals the district court's dismissal of his civil rights action for failure to prosecute. Maurer claims that the district court abused its discretion by failing to issue a writ of habeas corpus ad testificandum and instead requiring the trial to proceed by deposition. Maurer also appeals the court's denial of his motion for a discovery order compelling production of certain documents. We affirm.

* In Maurer v. Los Angeles County Sheriff's Dep't., No. 82-5151, unpub. opinion at 11-13 (February 12, 1985) ("Maurer I"), a panel of this court reviewed the denial of a prior petition for writ of habeas corpus ad testificandum filed by Maurer in this action. The panel in Maurer I held that it was not an abuse of discretion for the district court to deny the writ petition. Id. at 13. As a general rule, the "law of the case" doctrine prevents one panel of an appellate court from reconsidering questions which another panel has decided on a prior appeal in the same case. Kimball v. Callahan, 590 F.2d 768, 771-72 (9th Cir.), cert. denied, 444 U.S. 826 (1979). Thus, we are bound to follow the decision in Maurer I that the district court did not abuse its discretion in refusing to issue the writ, unless the evidence in this subsequent proceeding is "substantially different, controlling authority has since made a contrary decision of the law ... or the decision was clearly erroneous and would work a manifest injustice." Kimball, 590 F.2d at 771 (quoting White v. Murtha, 377 F.2d 428, 431-32 (5th Cir. 1967).

Maurer has failed to make any of these showings. The evidence Maurer has submitted in support of his renewed petition is not substantially different from the evidence submitted with the earlier petition. Indeed, all of the "new" evidence appears to relate to Maurer's conduct prior to the time that he was convicted for first degree murder, and, thus, has little relevance to the question whether Maurer continues to pose a security risk. Nor has there been a change in the relevant law. The Supreme Court's decision on which Maurer relies, Pennsylvania Bureau of Correction v. United States Marshals Serv., 474 U.S. 34 (1985), does not even raise the issue of when a district court should grant a prisoner's petition for a writ of habeas corpus ad testificandum. Finally, while this panel might have resolved the issue differently had it been presented with Maurer's writ petition in the first instance, we cannot say that it was clearly erroneous for the panel in Maurer I to deny the writ.

II

We also reject Maurer's claim that it was an abuse of discretion for the district court to require the parties to proceed to trial by deposition and to dismiss the case when Maurer failed to appear at trial or submit deposition testimony. As we stated in Maurer I, when determining whether dismissal under Rule 41(b) is appropriate, the district court must consider, inter alia, the plaintiff's diligence, the court's need to manage its docket, the public interest in expeditious resolution of litigation, and the availability of less drastic sanctions. Maurer I at 14-15 (citing Ace Novelty Co. v. Gooding Amusement Co., 664 F.2d 761, 763 (9th Cir. 1981). It is an abuse of discretion for a district court to fail to consider less drastic alternatives than dismissal. Maurer I at 16 (citing Witt v. United States, 681 F.2d 1144, 1149 (9th Cir. 1982). Because the district court had not considered less drastic alternatives before dismissing Maurer's action, we reversed and remanded in Maurer I for consideration of alternative methods for bringing the case to trial.

Reviewing the district court's decision upon remand to dismiss again for failure to prosecute, we find no error in the decision. Complying with the instructions set forth in Maurer I, the district court considered other methods for protecting Maurer's interests in pursuing this action. The court's ultimate decision to proceed to trial by deposition was reasonable considering the unavailability of the writ, local counsel's unwillingness to represent Maurer, Maurer's demonstrated ability to represent himself, and the fact that Maurer did not indicate that he would need to depose non-party witnesses until one month before trial. When Maurer failed to comply with the district court's order directing him to file his deposition with the court, the district court acted well within its discretion by dismissing the case for failure to prosecute.

III

Because we affirm the district court's order dismissing the case, we need not consider Maurer's claim that the district court erred in denying his motion to compel production of the addresses of certain defendants.

The judgment of the district court dismissing the action is AFFIRMED.