Nicholas Scott Stone v. T. Robinson

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICHOLAS SCOTT STONE,
Plaintiff-Appellant,
v.
T. ROBINSON; Y. YANG, LVN; R.
DAVID; M. PEREZ, BPT Commissioner; A.
J. FERNANDEZ; M. ORTEGA;
GONZAKIS; A. RAMADAN, MI; IMAD
ABUMERI, Surgeon; WATI LILIES, RN;
JOHN ROTONDO, RN; JENNIFER
MELENDEZ, RN; CATHERINE NACAR;
CORAZON FLORES; BRETT MAREAN,
Defendants-Appellees.
No. 22-16587
D.C. No. 1:19-cv-00703-ADA-HBK
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Ana de Alba, District Judge, Presiding
Submitted September 12, 2023**
Before: CANBY, CALLAHAN, and OWENS, Circuit Judges.
California state prisoner Nicholas Scott Stone appeals pro se from the
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
SEP 19 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2 22-16587
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging
constitutional violations. We have jurisdiction under 28 U.S.C. § 1291. We
review for an abuse of discretion a dismissal under Federal Rule of Civil Procedure
41(b). Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir. 2002). We affirm.
The district court did not abuse its discretion in dismissing Stone’s action for
failure to prosecute where Stone failed to take any action to pursue his claim
against Abumeri, the sole remaining defendant, for multiple months. See Fed. R.
Civ. P. 41(b) (a district court may dismiss an action “[i]f the plaintiff fails to
prosecute or to comply with these rules or a court order”); Pagtalunan, 291 F.3d at
640-43 (discussing factors to be considered before dismissing a case for failure to
prosecute or failure to comply with a court order; a district court’s dismissal should
not be disturbed absent “a definite and firm conviction” of “a clear error of
judgment” (citations and internal quotation marks omitted)).
We do not consider Stone’s challenge to the district court’s interlocutory
orders. See Al-Torki v. Kaempen, 78 F.3d 1381, 1386 (9th Cir. 1996)
(“[I]nterlocutory orders, generally appealable after final judgment, are not
appealable after a dismissal for failure to prosecute, whether the failure to
prosecute is purposeful or is a result of negligence or mistake.” (citation and
internal quotation marks omitted)).
We do not consider arguments and allegations raised for the first time on

-- 2 of 3 --

3 22-16587
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
All pending requests are denied.
AFFIRMED.

-- 3 of 3 --