Erlean Bailey, Plaintiff-appellant, v. State of California; Orange County Municipal Court; Orangecounty; Social Service Agency of the County Oforange; Daniel T. Brice, Judge,defendants-appellees, 125 F.3d 857 (9th Cir. 1997)

MEMORANDUM^* 

Earlean Bailey appeals pro se the district court's order dismissing with prejudice Bailey's action brought pursuant to 42 U.S.C. §§ 1983 and 1985. The district court dismissed the action sua sponte for failure to prosecute pursuant to Fed. R. Civ. P. 41(b) after Bailey failed to file a second amended complaint within the time prescribed by the court. We review for abuse of discretion, Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir. 1992), and we affirm.

The district court properly considered the five factors set forth in Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992), including the availability of less drastic sanctions than dismissal. The district court also warned Bailey that failure to timely file a second amended complaint could result in dismissal. Compare Oliva, supra, at 273-274 (vacating sua sponte dismissal for failure to prosecute where there was no indication in the record that the district court had considered less drastic sanctions or that the plaintiff was warned of dismissal). Accordingly, the district court did not abuse its discretion by dismissing the action for failure to prosecute.

Bailey's allegations that the district judge and the magistrate judge had a personal bias and/or prejudice against her are not supported by the record.

AFFIRMED.