Gary W. Ching, Plaintiff-appellant, v. Samuel A. Lewis, et al., Defendant-appellees, 963 F.2d 378 (9th Cir. 1992)

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US Court of Appeals for the Ninth Circuit - 963 F.2d 378 (9th Cir. 1992)

Submitted May 14, 1992. *Decided May 19, 1992


Before FERGUSON, REINHARDT and KOZINSKI, Circuit Judges.


MEMORANDUM** 

Gary Ching, an Arizona state prisoner, appeals pro se the district court's order dismissing his 42 U.S.C. § 1983 action with prejudice for failure to file responsive memoranda. We affirm.

The district court granted the motion to dismiss pursuant to Rule 11(i) of the Rules of Practice of the United States District Court for the District of Arizona. This rule provides that if an opposing party fails to file a responsive memoranda, non-compliance may be deemed a consent to the granting of the motion, and the court may dismiss the motion summarily. We have previously approved this rule. See United States v. Warren, 601 F.2d 471, 473-74 (9th Cir. 1979). The rule is discretionary, not mandatory. Id. We see no abuse of discretion here. Defendants filed a motion for summary dismissal after plaintiff failed to respond to its earlier motion to dismiss for failure to state a claim. The district court's order accurately chronicles plaintiff's dilatory behavior. We affirm on this ground.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 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 Circuit Rule 36-3