Beard-Williams v. Palmdale School District

65 F. App'x 114

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 24, 2003
• Docket: Nos. 01-57163, 02-55251; D.C. No. CV-99-06789-AHM
• Status: Published

Opinion

MEMORANDUM

**

Diana Beard-Williams appeals pro se the district court’s Rule 41(b) dismissal of her employment discrimination action for failure to prosecute. The Palmdale School District (“the District”) appeals the district court’s denial of attorney’s fees under 42 U.S.C. § 2000e-5(k). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review the district court’s dismissal for failure to prosecute for abuse of discretion. Al-Torki v. Kaempen, 78 F.3d 1381, 1384 (9th Cir.1996). The district court’s dismissal of this action based on a determination that Beard-Williams willfully failed to appear for the sixth day of her jury trial, without a valid excuse, was not an abuse of discretion. See id. at 1385 (“Failure to appear for trial, without excuse, prejudices an adversary and interferes with the court’s docket about as much as any procedural default can.”). Although Beard-Williams sent a doctor’s note on the third day of her absence, the court was not required to credit this letter, which was not written under penally of perjury. Because dismissal was proper, we do not review Beard-Williams’s other claims of error. See id. at 1386.

We review the district court’s denial of attorney’s fees for abuse of discretion. Miller v. Los Angeles County Bd. of Educ., 827 F.2d 617, 619 (9th Cir.1987). The district court’s determination that Beard-Williams’s action was not frivolous was supported by the record. See Jensen v. Stangel, 762 F.2d 815, 818 (9th Cir.1985) (per curiam) (holding that the district court’s denial of defendants’ motions to dismiss and for summary judgment suggested that plaintiffs claims were not without merit). Having determined that Beard-Williams’s action was not frivolous, the district court properly denied the District’s motion for an award of attorney’s fees.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.