Unpublished Disposition, 936 F.2d 577 (9th Cir. 1991)

MEMORANDUM^** 

Larry Howard, an Arizona state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action for failure to draft a pretrial order as required by Rule of Practice 42 of the United States District Court for the District of Arizona ("Local Rule") and for failure to serve and file a response to the defendants' motion for dismissal.¹  We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

Howard contends, for the first time on appeal, that the district court's dismissal was improper because prison officials failed to deliver his timely response to the defendants' motion for dismissal or his motion for reconsideration.

Although, as a general rule, we will not consider an issue raised for the first time on appeal, we may do so in exceptional circumstances. See Bolker v. CIR, 760 F.2d 1039, 1042 (9th Cir. 1985) (citations omitted) (exception applies if review is necessary to prevent a miscarriage of justice).

Here, if Arizona prison officials prevented Howard's response from reaching the district court, dismissal under Local Rule 11(i) for failure to respond to the defendants' motion would be unjust. See id.; see also Howard v. Lewis, 905 F.2d 1318, 1324 (9th Cir. 1990). Howard, however, has failed to offer any evidence that he ever prepared, let alone timely submitted, either a response to the defendants' motion to dismiss or a motion for reconsideration from that dismissal. Moreover, Howard offers no explanation for his failure to comply with the district court's order that he timely prepare a draft pretrial order. Given these circumstances, including the district court's repeated warning that failure to submit a draft pretrial order could result in dismissal of the action, we hold that the district court did not err in dismissing this action.

AFFIRMED.