Baskett v. Quinn

225 F. App'x 639

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 21, 2007
• Docket: No. 06-35387
• Status: Published

Opinion

MEMORANDUM

**

Washington state prisoner Ronald L. Baskett appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. § 1915(e) for failure to state a claim. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order). We review for abuse of discretion a dismissal for failure to comply with an order requiring the timely submission of an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). We affirm.

As the April 18, 2006 dismissal order incorporated the prior order dismissing with leave to amend, we review the prior order to the extent it affected the final judgment. See Chacon v. Wood, 36 F.3d 1459, 1467 (9th Cir.1994). The district court properly concluded Baskett failed to state a claim because the complaint failed to allege defendant’s personal involvement in an Eighth Amendment violation and the doctrine of respondeat superior is not applicable. See Bonner v. Lewis, 857 F.2d 559, 566 (9th Cir.1988). Moreover, because the district court advised Baskett how to cure the complaint’s deficiencies, warned him that the action would be dismissed if he failed to file an amended complaint, and dismissed the action without prejudice to the filing of a new action, the court did not abuse its discretion in dismissing Baskett’s action. See Ferdik, 963 F.2d at 1260-61.

The district court also properly determined the dismissal counts as a strike under 28 U.S.C. § 1915(g). See Lira v. Herrera, 427 F.3d 1164, 1170 n. 7 (9th Cir.2005) (“Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which were dismissed on the ground that they were frivolous, malicious, or fail to state a claim”) (internal quotations omitted).

The district court did not abuse its discretion by denying Baskett’s motion to recuse the magistrate judge assigned to this ease. See Yagman v. Republic Ins., 987 F.2d 622, 626 (9th Cir.1993) (recusal is justified by actual bias or the appearance of bias).

The remaining contentions lack merit. AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.