Unpublished Disposition, 888 F.2d 130 (9th Cir. 1987)

MEMORANDUM^*

Spychala, a state prisoner proceeding pro se, filed this action seeking relief under 42 U.S.C. § 1983. Because of a lack of activity on his part between February 14, 1986 and March 10, 1987, Spychala was instructed to inform the court of any reasons why the action should not be dismissed. The court required Spychala to explain his lack of activity and to list the specific steps he intended to take to bring his case to trial. Although Spychala responded to the court's notice, he did not provide the court with the requested information. The magistrate found that Spychala had not acted on his case in over six months and Spychala's statement in opposition to the dismissal did not provide adequate reasons why the action should proceed. The district court therefore dismissed Spychala's action for lack of prosecution.

The district court has discretionary authority to dismiss an action based on plaintiff's failure to prosecute diligently. Fed. R. Civ. P. 41(b); Rule 271, Local Rules of Practice for the Eastern District of California. Unreasonable delay by plaintiff is sufficient to justify dismissal, even in absence of actual prejudice to the defendant. See Moore v. Telfon Communications Corp., 589 F.2d 959, 967-68 (9th Cir. 1978); Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976). A presumption of injury arises when there is unreasonable delay. Anderson, 542 F.2d at 524. Plaintiff therefore has the burden of justifying the delay, and in the absence of such justification the case is properly dismissed for failure to prosecute. See Nealey v. Transportacion Maritima Mexicana, S.A., 662 F.2d 1275, 1280 (9th Cir. 1980).

A district court's dismissal pursuant to Rule 41(b) should not be overturned unless the district court clearly abused its discretion. Moore, 589 F.2d at 967. In this case, there was no such abuse of discretion.

AFFIRMED.