Hoang Tran v. William Gore , 599 F. App'x 317 ( 2015 )

FILED
NOT FOR PUBLICATION MAR 20 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOANG MINH TRAN, No. 13-56790
Plaintiff - Appellant, D.C. No. 3:10-cv-02457-BTM-
WVG
v.
WILLIAM D. GORE, Sheriff; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Submitted March 10, 2015**
Before: FARRIS, WARDLAW, and PAEZ, Circuit Judges.
Former California state prisoner Hoang Minh Tran appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging excessive
force and deliberate indifference. We have jurisdiction under 28 U.S.C. § 1291.
We review for an abuse of discretion the dismissal for failure to comply with a
*
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).
court order. Allen v. Calderon, 408 F.3d 1150, 1152 (9th Cir. 2005). We affirm.
The district court did not abuse its discretion in dismissing Tran’s action
because, despite the court’s warnings, Tran failed to comply with the order to
either respond to defendants’ discovery requests or seek dismissal. See Computer
Task Group, Inc. v. Brotby, 364 F.3d 1112, 1115 (9th Cir. 2004) (per curiam)
(discussing five factors for determining whether to dismiss for failure to comply
with a court order).
The district court did not abuse its discretion in denying Tran’s motions for
appointment of counsel because Tran failed to demonstrate exceptional
circumstances. See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir.
2004) (standard of review and requirements for appointment of counsel).
The district court did not abuse its discretion in denying Tran’s request for a
formal competency hearing because Tran failed to demonstrate a substantial
question as to his mental competence. See Allen, 408 F.3d at 1153-54 (a pro se
plaintiff in a civil lawsuit is “entitled to a competency determination when
substantial evidence of incompetence is presented”).
The district court did not abuse its discretion in denying Tran’s request to
appoint a next friend or guardian ad litem. See Coalition of Clergy, Lawyers, &
Professors v. Bush, 310 F.3d 1153, 1159-60 (9th Cir. 2002) (test for appointment
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of next friend); United States v. 30.64 Acres of Land, 795 F.2d 796, 804-05 (9th
Cir. 1986) (standard of review for appointment of guardian ad litem).
The district court did not abuse its discretion in denying Tran’s Rule 60(b)
motion because Tran failed to establish any ground for relief from judgment. See
Am. Ironworks & Erectors Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 899 (9th
Cir. 2001) (setting forth grounds for relief under Rule 60(b)).
We reject Tran’s contention that he demonstrated entitlement to appointed
counsel under the Americans with Disabilities Act or the Rehabilitation Act, and
his contention that the district court denied him due process in evaluating his
claims of incompetence.
We do not consider matters raised for the first time on appeal. See Padgett
v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
Tran’s motion to proceed in forma pauperis, filed on March 12, 2014, is
denied as unnecessary.
AFFIRMED.
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