Michael Villalobos v. Tom Vilsack

MEMORANDUM ***

Michael A. Villalobos appeals pro se from the district court’s order dismissing his employment action alleging retaliation and discrimination. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion. Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir. 2002) (dismissal for failure to comply with a court order); Hernandez v. City of El Monte, 138 F.3d 393, 398 (9th Cir. 1998) (dismissal for failure to prosecute). We affirm.

The district court did not abuse its discretion by dismissing Villalobos’ action without prejudice after Villalobos failed to respond timely to the district court’s order to show cause regarding his failure to prosecute and meet court deadlines, despite being warned that failure to respond could result in dismissal. See Pagtalunan, 291 F.3d at 642 (setting forth factors for a district court to consider in determining whether to dismiss for failure to comply with a court order or failure to prosecute); see also Hernandez, 138 F.3d at 400-01 (a presumption of prejudice arises from a plaintiffs failure to prosecute or provide a non-frivolous excuse for delay); Ash v. Cvetkov, 739 F.2d 493, 497 (9th Cir. 1984) (“[Djismissal without prejudice is a more easily justified sanction for failure to prosecute.”).

We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n. 2 (9th Cir. 2009) (per curiam).

AFFIRMED.