Unpublished Disposition, 899 F.2d 1224 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 1224 (9th Cir. 1989)

Dennis Nelson FIXEL, Plaintiff-Appellant,v.George SUMNER, et al., Defendants-Appellees.

No. 87-2900.

United States Court of Appeals, Ninth Circuit.

Submitted March 26, 1990.* Decided April 3, 1990.

Before FLETCHER, LEAVY and FERNANDEZ, Circuit Judges.


Dennis Fixel appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action for failure to prosecute under Fed. R. Civ. P. 41(b). We review for an abuse of discretion, Hernandez v. Whiting, 881 F.2d 768, 770 (9th Cir. 1989), and affirm.

After five years, and numerous motions, orders, interlocutory appeals and pretrial preparation, Fixel's civil rights action came to trial on September 24, 1987. However, Fixel declined to testify, bring exhibits or call witnesses without the appointment of an inmate legal assistant. Because the district court had five times previously refused Fixel's request for counsel, it issued a warning that if Fixel refused to proceed with the trial, it would grant the defendants' motion to dismiss the action for failure to prosecute. Fixel remained steadfast and the court ordered the action dismissed on October 7, 1989.

Fixel contends the district court erred in dismissing the action without determining the merits of his complaint. This contention lacks merit.

The district court may dismiss an action under Rule 41(b) if the plaintiff fails to prosecute his action. Fed. R. Civ. P. 41(b). Before dismissal, however, the court is required to weigh five factors: " '(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.' " Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987), cert. denied, 109 S. Ct. 59 (1988) (quoting Thompson v. Housing Authority, 782 F.2d 829, 832 (9th Cir.), cert. denied, 479 U.S. 829 (1986)). If the district court does not explicitly consider these factors, we review the entire record to determine whether the order of dismissal was an abuse of discretion. Id.

Here, the district court did not abuse its discretion in dismissing the action for failure to prosecute. The first two factors support the court's decision because Fixel's refusal to proceed with the trial after five years of preparation impeded the resolution of the case and prevented the district court from adhering to its scheduled docket. See Malone, 833 F.2d at 130. The third factor also lends support because the defendants were prejudiced by the irremediable costs and burdens imposed upon them. See id. Additionally, the warning given to Fixel sufficed to meet the consideration of alternatives requirement. See id. at 132.1  Finally, the public policy favoring disposition on the merits was not sufficient to outweigh the four other factors. See id. at 133, n. 2.



The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


Alternatively, the district court could have appointed either counsel or a legal assistant. However, " [a] motion for appointment of counsel is addressed to the sound discretion of the trial court and is granted only in exceptional circumstances." Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). Because the court found that Fixel had demonstrated his ability to communicate to the court during previous court appearances, we cannot say that the district court abused its discretion in refusing Fixel's request