846 F2d 1382 Fry v. United States

846 F.2d 1382

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Pauline FRY, Plaintiff-Appellant,
UNITED STATES of America, et al., Defendants-Appellees.

No. 86-2342.

United States Court of Appeals, Ninth Circuit.

Submitted March 18, 1988.*
Decided April 27, 1988.

Before CHOY, TANG and O'SCANNLAIN, Circuit Judges.

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Appeal from the United States District Court for the Eastern District of California; Lawrence K. Karlton, Chief District Judge, Presiding.


Pauline Fry appeals pro se the district court's dismissal without prejudice of her action against the United States Department of the Army, the Sacramento Army Depot, Dr. Lester C. Krotcher, M.D., and Leona Badgett, R.N. (Civ. No. S-80-953) ["Fry I"] for failure to prosecute, and the dismissal on summary judgment of her action against Lt. Col. Ernest Levasseur, PFC Ernest Smith, the Sacramento District Recruiting Command, and the United States Army (Civ. No. S-82-672) ["Fry II"]. Fry I and II are related, but not consolidated, actions. Upon review, the judgment is affirmed.


The district court properly dismissed Fry I for lack of prosecution under Fed.R.Civ.P. 41(b). First, although the delay occasioned by Fry's lack of prosecution was relatively short, the district court could reasonably conclude that the delay rendered its docket unmanageable given the protracted six-year history of this case. See Ash v. Cvetkov, 739 F.2d 493, 497 (9th Cir.1984), cert. denied, 470 U.S. 1007 (1985). Second, the district court clearly notified Fry of the impending dismissal and gave her an opportunity to explain the delay. Id. Third, the dismissal was without prejudice, giving Fry the opportunity to return and prosecute her claims another day. Id. Finally, the court's warning to Fry that her action would be dismissed if she failed to comply with a court order satisfied the "consideration of alternatives" requirement. See Malone v. United States Postal Service, 833 F.2d 128, 132-33 (9th Cir.1987); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir.1986). The dismissal of Fry I is affirmed.


Because Fry failed timely to appeal the district court's dismissal of Fry II, this court lacks jurisdiction to consider the merits of that appeal. See Fed.R.App.P. 4(a)(1); Fierster v. Turner, 783 F.2d 1474, 1475 (9th Cir.1986).




The panel unanimously agrees that this case is appropriate for submission without oral argument. Fed.R.App.P. 34(a); 9th Cir. 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