Erlean Bailey v. State of California Orange County Municipal Court Orange County Social Service Agency of the County of Orange Daniel T. Brice, Judge , 125 F.3d 857 ( 1997 )

125 F.3d 857

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Erlean BAILEY, Plaintiff-Appellant,
v.
STATE OF CALIFORNIA; Orange County Municipal Court; Orange
County; Social Service Agency of the County of
Orange; Daniel T. Brice, Judge,
Defendants-Appellees.

No. 96-55666.

United States Court of Appeals, Ninth Circuit.

Submitted September 22, 1997.**
Decided Sept. 24, 1997.

Appeal from the United States District Court for the Central District of California, No. CV-95-0104-AHS(EE); Alicemarie H. Stotler, District Judge, Presiding.

Before: HALL, BRUNETTI, and THOMAS, Circuit Judges.

1

MEMORANDUM*

2

Earlean Bailey appeals pro se the district court's order dismissing with prejudice Bailey's action brought pursuant to 42 U.S.C. §§ 1983 and 1985. The district court dismissed the action sua sponte for failure to prosecute pursuant to Fed.R.Civ.P. 41(b) after Bailey failed to file a second amended complaint within the time prescribed by the court. We review for abuse of discretion, Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir.1992), and we affirm.

3

The district court properly considered the five factors set forth in Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.1992), including the availability of less drastic sanctions than dismissal. The district court also warned Bailey that failure to timely file a second amended complaint could result in dismissal. Compare Oliva, supra, at 273-274 (vacating sua sponte dismissal for failure to prosecute where there was no indication in the record that the district court had considered less drastic sanctions or that the plaintiff was warned of dismissal). Accordingly, the district court did not abuse its discretion by dismissing the action for failure to prosecute.

4

Bailey's allegations that the district judge and the magistrate judge had a personal bias and/or prejudice against her are not supported by the record.

5

AFFIRMED.

**

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3