Unpublished Disposition, 896 F.2d 555 (9th Cir. 1986)

MEMORANDUM^** 

Plaintiff-Appellant Noel Plunkett appeals the district court's dismissal of his damages claim against Defendant-Appellee United States of America ("the United States") under the Federal Tort Claims Act, 28 U.S.C. § 1346 et seq. ("FTCA"), for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). We affirm.

On June 12, 1981, Plunkett first filed this action, naming various defendants and seeking damages pursuant to the FTCA and declaratory relief regarding a May 10 incident at the Federal Correctional Institute in Lompoc, California. Following extensive procedural rulings, the district court set trial for September 9, 1986, after Plunkett's presumptive parole date of August 25, 1986. However, the parole board revoked this presumptive parole date and continued Plunkett's incarceration to his mandatory release date of September, 1987. Plunkett then moved for a writ of habeas corpus ad testificandum to have himself transported for the September 9 trial, also stating that he would not travel to the Central District of California at his own expense for trial if trial were rescheduled for a date after his September, 1987 mandatory release. The court denied this motion, but offered Plunkett the opportunity to present his testimony at trial by deposition, ordering that discovery be reopened for the limited purpose of taking his deposition.

Plunkett failed to comply with the court's order that his deposition be taken so that his testimony could be presented at trial, refusing to be sworn and refusing to be deposed, even though the order had been mailed to him, was read to him by the Assistant United States Attorney, and was also read to him by the Chief Deputy Clerk of the Central District of California. Plunkett also failed to file a narrative statement of his own testimony, nor did he submit any other evidence in support of his claim.

The trial court, after considering the facts of the case and determining that there was no effective alternative to dismissal held:

Plaintiff's history of continuing to press claims that have been dismissed, repeated filing of motions for appointment of counsel without legal or factual basis, refusal to comply with the Court's Orders, failure to provide any evidence in support of his claim, stated intent not to attend trial at his own expense if trial were continued until after his release from prison, and the fact that this action has been pending since August of 1981, constitute grounds for dismissal under Rule 41(b), Federal Rules of Civil Procedure, for failure to prosecute.

The trial court then entered judgment in favor of the United States.

We review the district court's Rule 41(b) dismissal for lack of prosecution for an abuse of discretion. Hernandez v. Whiting, 881 F.2d 768, 770 (9th Cir. 1989). We will not disturb the court's ruling unless there is "a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors." Anderson v. Air West Inc., 542 F.2d 522, 524 (9th Cir. 1976).

In the present case, there is no evidence of such error. To the contrary, the district court properly considered alternatives to dismissal, see Hernandez, 881 F.2d at 771 (trial court "must investigate reasonable alternatives" before dismissing an incarcerated prisoner's pro se action for failure to prosecute), and Plunkett's actions, as cited by the district court, strongly support the dismissal of his claim.

Plunkett's contention that he did not receive the district court's order is without merit. The district court specifically found that the Court's order was mailed to him, that it was read to him by the Assistant United States Attorney, and that it was read to him by the Chief Deputy Clerk of the Court.

The district court's dismissal is hereby AFFIRMED.