Unpublished Disposition, 860 F.2d 1090 (9th Cir. 1987)

MEMORANDUM^** 

Kennard Williams, an Oregon state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 civil rights action against various prison officials. We affirm.

Williams filed his action on November 21, 1985, against officers and employees of the Oregon State Penitentiary and various state officials having jurisdiction over the state prison system. He asserted in his complaint that he was injured in an attack upon him by a fellow inmate and that the attack was caused by the negligence of the state officials in supervising the prison. The defendants answered. Following the denial of a motion to dismiss by the defendants on September 11, 1986, the court ordered the plaintiff to complete his discovery and to file a narrative statement of his proposed evidence by December 15, 1986. Having failed to meet this deadline, the court, on December 19, 1986, ordered the plaintiff to show cause on January 7, 1987, why his complaint should not be dismissed for failure to prosecute. The plaintiff responded with a request for an extension of time within which to file his narrative statement. The court granted the plaintiff's motion and ordered that the narrative statement be filed on January 20, 1987, or that he show cause on that date why the complaint should not be dismissed for want of prosecution. The plaintiff did neither and on March 4, 1987, a judgment dismissing the action was entered. Plaintiff filed a timely appeal.

The question we must decide is whether the trial court abused its discretion in dismissing the complaint and entering judgment against the plaintiff for want of prosecution. The trial court acted within its authority, Fed. R. Civ. P. 41(b), and we should not disturb the exercise of the trial court's discretion "unless there is 'a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing relevant factors.' " Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976), (quoting In re Josephson, 218 F.2d 174, 182 (1st Cir. 1954)).

We note that the trial court twice gave notice to the plaintiff that he risked the dismissal of his complaint if the narrative statement was not filed. The statement was not filed, nor has it been lodged with the court as of this date. The reason for the plaintiff's failure is not precisely explained in his brief, although it appears probable that he was relying for legal assistance upon a fellow prisoner who became unavailable to the plaintiff because of a violation of prison rules. The unavailability of his assistant, however, was never explained to the trial court.

Although the delay by the plaintiff is relatively modest, we are unable to conclude that the trial court abused its discretion in dismissing the action. Williams was twice warned and did not heed the admonition. Under the circumstances, dismissal for failure to prosecute was proper. Mir v. Fosburg, 706 F.2d 916, 919 (9th Cir. 1983) ("Were the plaintiff to fail to comply with such a schedule without cause, the sanction of dismissal might then be appropriate.")

AFFIRMED.