Unpublished Disposition, 920 F.2d 936 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 920 F.2d 936 (9th Cir. 1990)

No. 89-55830.

United States Court of Appeals, Ninth Circuit.

Before BEEZER and TROTT, Circuit Judges, and CROCKER, District Judge** .

MEMORANDUM*** 

* SUMMARY

Arthur Radcliff, proceeding pro se and in forma pauperis, alleged in his civil rights complaint that the defendants conspired to evict him from federally assisted low-income housing because of his race. The district court dismissed the complaint for failure to state a claim, and on the alternate grounds of (1) refusal to obey the court's order to replead, and (2) failure to prosecute. We affirm the district court's dismissal for refusal to obey the court order.1 

II

FACTS AND PROCEEDINGS BELOW

Radcliff was a resident in housing subsidized by the Department of Housing and Urban Development ("HUD"), which provides assistance to low-income families. He alleged that the defendants conspired to evict him because of his race, violating 42 U.S.C. §§ 1437f, 1437r-s, 1981-83, 1985(3), 1986, 2000d, 2000d-1, and 3601. The defendants are primarily HUD administrators and managers of his apartment building.

Radcliff's complaint was referred to Magistrate Brown, who dismissed on three grounds: (1) failure to specify the statutes under which the HUD officials waived sovereign immunity; (2) failure to allege defendants acted under color of law; and (3) failure to specify the state court eviction actions of which he complains. In his order, Magistrate Brown gave Radcliff three weeks to amend his complaint. Radcliff did not amend but filed objections to the magistrate's recommendation. Radcliff also filed motions for (1) court-appointed counsel, (2) dismissal of Magistrate Brown for personal bias, and (3) a three-judge panel to hear his complaint. Judge Ideman denied the objections to the magistrate's finding and the first two motions, but did not rule on the third.

After Judge Ideman's rulings, Magistrate Brown gave Radcliff another three weeks to amend his complaint. Radcliff filed other motions not relevant to this appeal but failed to amend his complaint within the three week period. Magistrate Brown recommended dismissing Radcliff's complaint with prejudice, (1) "for plaintiff's failure and refusal to state a claim," (2) "on the alternate ground of plaintiff's persistent refusals to obey the court's orders to replead," and (3) "on the still further alternate ground of plaintiff's refusal diligently to prosecute." Judge Ideman adopted Magistrate Brown's recommendation and dismissed the complaint.

On appeal, Radcliff argues the court erred in dismissing his complaint, denying class certification, refusing to appoint counsel, and refusing to grant a three-judge panel.

III

DISMISSAL FOR FAILURE TO COMPLY WITH COURT ORDERS

Radcliff repeatedly refused to amend his complaint, although Magistrate Brown clearly explained its deficiencies. The complaint was dismissed sua sponte on the alternate ground of refusal to comply with the court's order to replead. There was no motion for dismissal by the defendants, since the action was dismissed before they were served. We affirm the court's sua sponte dismissal of Radcliff's complaint for failure to comply with the court's order to amend.

The dismissal for failure to comply with the court's order to replead was a proper exercise of the inherent powers of the court, which "are necessary to the exercise of all others." United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812). The court's inherent power to dismiss for failure to comply with court orders is codified in Rule 41(b) of the Federal Rules of Civil Procedure.

For failure of the plaintiff to ... comply with ... any order of the court, a defendant may move for dismissal of an action or of any claim against the defendant.

Fed. R. Civ. P. 41; see Agnew v. Moody, 330 F.2d 868, 870-71 (9th Cir.), cert. denied, 379 U.S. 867 (1964).

Although Rule 41(b) provides for dismissal on the motion of the defendant, the court can dismiss an action sua sponte. Link v. Wabash R.R., 370 U.S. 626, 630-631 (1962) (dismissal for failure to prosecute); see also Alexander v. Pacific Maritime Ass'n, 434 F.2d 281, 283-84 (9th Cir. 1970), cert. denied, 401 U.S. 1009 (1971). The permissive language of Rule 41--the defendant "may" move for dismissal--does not limit the court's ability to dismiss sua sponte if the defendant makes no motion for dismissal. Link, 370 U.S. at 630. The district court properly dismissed Radcliff's complaint in an exercise of its inherent powers.

IV

OTHER ISSUES APPEALED

Radcliff also appeals the district court's denial of his requests for: (1) class certification; (2) appointed counsel; and (3) a three-judge panel. The district court did not abuse its discretion in denying these requests.

Radcliff raised the class certification issue in one sentence in his appellate brief. Because the issue was not raised before the district court, the court acted properly in not certifying the class. Radcliff's request for court-appointed counsel was denied because the district court found he failed to demonstrate likelihood of success on the merits and inability to articulate his claims. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). The district court properly applied Wilborn's two-prong test. Radcliff's final argument is that the district court erred in not ruling on his request for a three judge panel. Since Radcliff apparently relied on 28 U.S.C. § 2281 or 2282, both of which were repealed in 1976, the district court did not err in not granting Radcliff's request.

Because Radcliff's arguments on appeal lack merit, the district court's dismissal of the complaint is

AFFIRMED.

 *

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

 **

The Honorable M.D. Crocker, Senior United States District Judge, Eastern District of California, sitting by designation

 ***

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. Rule 36-3

 1

We affirm on this ground because the district court may have erred in dismissing for failure to state a claim, instead of applying the frivolousness standard appropriate for in forma pauperis complaints dismissed sua sponte before defendants are served. See Jackson v. State of Arizona, 885 F.2d 639, 640 (9th Cir. 1989). However, we do not reach the issue of whether the district court applied the proper standard because we affirm on an alternate ground

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