Marian Haworth v. Samuel Montgomery , 517 F. App'x 577 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 24 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MARIAN M. HAWORTH, No. 10-55453
Plaintiff - Appellant, D.C. No. 5:09-cv-00372-SJO-RC
v.
MEMORANDUM*
SAMUEL MONTGOMERY, Owner of
San Bernardino R.V. Park in San
Bernardino, CA; LOIS MONTGOMERY,
Owner of San Bernardino R.V. Park in San
Bernardino, CA; JACK CUNNINGHAM,
Offsite Manager of San Bernardino R.V.
Park; LA CUMBRE MANAGEMENT
COMPANY, INC., Owned by Jack
Cunningham-Whom Manages San
Bernardino R.V. Park; SAN
BERNARDINO R.V. PARK, DBA James
Murdock Located in San Bernardino, CA;
SAM HARSIN, Onsite Manager of San
Bernardino R.V. Park; PAMELA
HARSIN, Onsite Manager of San
Bernardino R.V. Park,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
S. James Otero, District Judge, Presiding
Submitted April 9, 2013**
Pasadena, California
Before: BERZON, TALLMAN, and M. SMITH, Circuit Judges.
Marian M. Haworth appeals pro se from the district court’s judgment
dismissing her housing discrimination action for failure to comply with a court
order. 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); United States
v. 30.64 Acres of Land, 795 F.2d 796, 804 (9th Cir. 1986). We affirm.
The district court did not abuse its discretion by dismissing Haworth’s action
without prejudice because Haworth failed to file a third amended complaint after
being given two extensions of time to do so and being warned that failure to do so
might result in dismissal. See Pagtalunan, 291 F.3d at 642–43 (discussing factors
for dismissal under Fed. R. Civ. P. 41(b) and affirming dismissal where three out
of five factors supported it).
Contrary to Haworth’s contention, the district court was not obligated to
consider appointing a guardian ad litem before dismissing her action because there
was insufficient evidence of mental incompetence, and the dismissal was without
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2
prejudice. See Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005) (a pro se
civil litigant is “entitled to a competency determination when substantial evidence
of incompetence is presented”); Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir.
1989) (a district court may dismiss without prejudice for failure to comply with an
order when a substantial question exists regarding a pro se litigant’s mental
competence).
Because we affirm the district court’s dismissal under Rule 41(b), we do not
consider Haworth’s challenges to the district court’s interlocutory orders. See Al-
Torki v. Kaempen, 78 F.3d 1381, 1386 (9th Cir. 1996).
We do not consider 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).
Haworth’s remaining contentions are unpersuasive.
AFFIRMED.
3
FILED
Haworth v. Montgomery, No. 10-55453 APR 24 2013
MOLLY C. DWYER, CLERK
BERZON, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I respectfully dissent from the majority’s disposition.
1. In the district court, Haworth presented an array of documents
demonstrating that she suffered from severe depression and recurring suicidal
ideations, and that these conditions impeded her ability to respond to the court’s
orders in a timely manner. Because Haworth presented “substantial evidence of
incompetence,” I would hold that the district court abused its discretion by
dismissing Haworth’s action “for failure to prosecute without first holding a
competency hearing.” See Allen v. Calderon, 408 F.3d 1150, 1153–54 (9th Cir.
2005). I would therefore vacate the judgment and remand to the district court so
that it may consider in the first instance whether appointment of a guardian ad
litem is appropriate. See Fed. R. Civ. P. 17(c).
2. The majority relies on Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir.
1989), for the proposition that even “when a substantial question exists regarding a
pro se litigant’s mental competence,” “a district court may dismiss without
prejudice for failure to comply with an order,” without holding a competency
hearing. Maj. at 3. The majority misreads Krain. That case held that “[t]he
preferred procedure when a substantial question exists regarding the mental
1
competence of a party proceeding pro se is for the district court to conduct” a
competency hearing. Krain, 880 F.2d at 1121. Krain went on to note that because
the party in that case had already refused to comply with an order necessary “to
produce information needed to determine” his competency, dismissal without
prejudice was also an appropriate remedy. Id.Unlike in Krain, there is no evidence that Haworth refused to participate in
competency determination proceedings. Haworth’s case therefore does not present
the unique facts in Krain that might warrant departing from the general rule that
“[a] party proceeding pro se in a civil lawsuit is entitled to a competency
determination when substantial evidence of incompetence is presented.” Allen,
408 F.3d at 1153.
2