Richard Zuckerman v. Benjamin Davis

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 21 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT RICHARD P. ZUCKERMAN, No. 23-15248 Plaintiff-Appellant, D.C. No. 2:21-cv-01874-SMM v. MEMORANDUM * BENJAMIN DAVIS, Assistant Dean of Students, Arizona State University; ARIZONA BOARD OF REGENTS; LISA JOYNER, Dean of Students, ASU Downtown Phoenix Campus; ARIZONA STATE UNIVERSITY, Defendants-Appellees. Appeal from the United States District Court for the District of Arizona Stephen M. McNamee, District Judge, Presiding Submitted May 29, 2024** Before: FRIEDLAND, BENNETT, and SANCHEZ, Circuit Judges. Richard P. Zuckerman appeals pro se from the district court’s judgment * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Zuckerman’s request for oral argument, set forth in the opening brief, is denied. dismissing his 42 U.S.C. § 1983 action alleging that his academic disciplinary proceedings violated his rights under federal and state law. 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 to amend the complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). We affirm. The district court did not abuse its discretion by dismissing Zuckerman’s action because Zuckerman failed to file a second amended complaint despite receiving an extension of time and being warned that failure to do so would result in immediate dismissal. See Fed. R. Civ. P. 41(b) (district court may dismiss an action “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order”); Ferdik, 963 F.2d at 1260-62 (setting forth factors for determining whether an action should be dismissed for failure to comply with a court order and noting that this court may review the record independently to determine if the district court abused its discretion). Zuckerman’s motion to appeal on the original record (Docket Entry No. 2) is granted. Because we do not consider the merits of the underlying case, Zuckerman’s motion to take judicial notice (Docket Entry No. 23) is denied as unnecessary. AFFIRMED. 2 23-15248