Unpublished Disposition, 872 F.2d 426 (9th Cir. 1986)

MEMORANDUM^** 

Michael August appeals the denial of his Rule 60(b) motion to set aside a judgment dismissing his action. We affirm.

In January, 1986, the district court dismissed August's Sec. 1983 civil rights action, without prejudice, for failure to appear, failure to prepare, and failure to prosecute his claim. August filed a timely motion to set aside this judgment under Rule 60(b), alleging that he had been illegally detained in jail for five months, and that he was unable to prosecute or respond to the court's orders during that time.

The magistrate held a hearing on April 11, 1986, and gave August ten days in which to "furnish this court of written proof that plaintiff was in fact in custody and why he was prevented to respond to defendants' opposition to his motion." The magistrate determined that the declaration August filed, which was ten days late, was insufficient. The district court then denied August's motion to set aside the judgment. We review the district court's denial of a motion for relief from judgment under Rule 60(b) for an abuse of discretion. Thompson v. Housing Auth. of Los Angeles, 782 F.2d 829, 832 (9th Cir.), cert. denied, 479 U.S. 829 (1986).

August had ample opportunity to show why he was unable properly to prosecute his claim. He filed his response late and it did not provide the written proof the court ordered August to produce. The district court had the authority to deny August's motion for failure to obey an order of the court. Fendler v. Westgate-California Corp., 527 F.2d 1168, 1170 (9th Cir. 1975). In any event, the response August filed was inadequate to support his motion. Even if it is assumed that failure to respond because of incarceration may constitute excusable neglect, August failed to prove he was in custody and was unable to prosecute his claim or otherwise respond to the court's orders. The district court did not abuse its discretion in denying August's motion.

AFFIRMED.