Herrera v. Burgett

Full title: ROBERTO HERRERA, Plaintiff - Appellant, v. BURGETT, Defendant - Appellee

Court: United States Court of Appeals, Ninth Circuit

Date published: Apr 14, 2014

568 F. App'x 518 (9th Cir. 2014)

Opinion

Submitted April 7, 2014 ^**

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 32.1)

Appeal from the United States District Court for the Eastern District of California. D.C. No. 2:10-cv-01280-GEB-DAD. Garland E. Burrell, Jr., District Judge, Presiding.

ROBERTO HERRERA, Plaintiff - Appellant, Pro se, Corcoran, CA.

Before: TASHIMA, GRABER, and IKUTA, Circuit Judges.

MEMORANDUM ^*

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

California state prisoner Roberto Herrera appeals pro se from the district court's judgment dismissing his 42 U.S.C. § 1983 action alleging that defendant was deliberately indifferent to his serious medical needs by failing to refill his pain medication prescription. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion a dismissal for failure to comply with a court order, Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir. 2002), and an order denying a request for appointment of counsel, Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). We affirm.

The district court did not abuse its discretion in dismissing without prejudice Herrera's action because Herrera failed to comply with the court's order to submit timely service documents or present good cause for his failure to do so. See Pagtalunan, 291 F.3d at 642-43 (discussing factors relevant to dismissal for failure to comply with a court order); see also Fed.R.Civ.P. 4(m) (requiring service within 120 days after the complaint is filed unless " plaintiff shows good cause for the failure" to serve); Oyama v. Sheehan (In re Sheehan), 253 F.3d 507, 512 (9th Cir. 2001) (discussing " good cause" ).

The district court did not abuse its discretion in denying Herrera's motion for appointment of counsel because Herrera failed to demonstrate exceptional circumstances. See Terrell, 935 F.2d at 1017 (explaining that counsel may only be appointed in " exceptional circumstances" ).

AFFIRMED.