ALBERT O'ROURKE V. USA, No. 11-55118 (9th Cir. 2013)

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FILED JAN 03 2013 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT ALBERT O ROURKE, No. 11-55118 Plaintiff - Appellant, D.C. No. 3:10-cv-00302-W-POR v. MEMORANDUM * UNITED STATES OF AMERICA; et al., Defendants - Appellees. Appeal from the United States District Court for the Southern District of California Thomas J. Whelan, District Judge, Presiding Submitted December 19, 2012 ** Before: GOODWIN, WALLACE, and FISHER, Circuit Judges. Albert O Rourke appeals pro se from the district court s judgment dismissing for failure to prosecute his action alleging federal and state law claims related to eviction and unlawful detainer proceedings against O Rourke. We have * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion, AlTorki v. Kaempen, 78 F.3d 1381, 1384 (9th Cir. 1996), and we affirm. The district court did not abuse its discretion by dismissing O Rourke s action because O Rourke failed to serve his amended complaint, to respond to the district court s notice regarding potential dismissal of his action for failure to prosecute, and to provide a credible explanation for his inaction and delay. See Fed. R. Civ. P. 41(b); Al-Torki, 78 F.3d at 1384 (discussing factors to be considered in dismissing an action for failure to prosecute). O Rourke s contentions regarding defendants alleged conspiracy to try to obtain nuclear weapons studies and related information allegedly stored in the O Rourke residence are not supported by the record. AFFIRMED. 2 11-55118

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