ROBERTO HERRERA V. BURGETT, No. 13-15872 (9th Cir. 2014)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS APR 14 2014 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERTO HERRERA, No. 13-15872 Plaintiff - Appellant, D.C. No. 2:10-cv-01280-GEBDAD v. MEMORANDUM* BURGETT, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, Jr., District Judge, Presiding Submitted April 7, 2014** Before: TASHIMA, GRABER, and IKUTA, Circuit Judges. California state prisoner Roberto Herrera appeals pro se from the district court s judgment dismissing his 42 U.S.C. § 1983 action alleging that defendant was deliberately indifferent to his serious medical needs by failing to refill his pain medication prescription. We have jurisdiction under 28 U.S.C. § 1291. We review * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). for an abuse of discretion a dismissal for failure to comply with a court order, Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir. 2002), and an order denying a request for appointment of counsel, Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). We affirm. The district court did not abuse its discretion in dismissing without prejudice Herrera s action because Herrera failed to comply with the court s order to submit timely service documents or present good cause for his failure to do so. See Pagtalunan, 291 F.3d at 642-43 (discussing factors relevant to dismissal for failure to comply with a court order); see also Fed. R. Civ. P. 4(m) (requiring service within 120 days after the complaint is filed unless plaintiff shows good cause for the failure to serve); Oyama v. Sheehan (In re Sheehan), 253 F.3d 507, 512 (9th Cir. 2001) (discussing good cause ). The district court did not abuse its discretion in denying Herrera s motion for appointment of counsel because Herrera failed to demonstrate exceptional circumstances. See Terrell, 935 F.2d at 1017 (explaining that counsel may only be appointed in exceptional circumstances ). AFFIRMED. 2 13-15872
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