Vizcaino v. Escalon Premier Brands

86 F. App'x 332

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 20, 2004
• Docket: No. 03-16411; D.C. No. CV-03-00802-DFL/GGH
• Status: Published

Opinion

MEMORANDUM

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Jose Vizcaino, Jr., proceeding pro se, appeals the district court’s dismissal without prejudice of Vizcaino’s failure to prosecute. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

We will reverse a district court’s order dismissing an action for lack of prosecution only for an abuse of discretion. Ash v. Cvetkov, 739 F.2d 493, 495-96 (9th Cir.1984). The district court here did not abuse its discretion. Although Vizcaino contends that his incarceration prevented him from pursuing his claim, he offers no evidentiary proof of this. District judges are best situated to decide when delay in a particular case interferes with docket management and the public interest. Ash, 739 F.2d at 497. The district court’s dismissal without prejudice also does not prevent Vizcaino from refiling his claim. See, e.g., Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 501, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001) (noting that dismissal without prejudice “will ordinarily ... have the consequence of not barring the claim from other courts”); Ash, 739 F.2d at 497 (noting that, while dismissal without prejudice contains some dangers, such as statute of limitations or service of process problems, a dismissal without prejudice is an easily justified sanction for failure to prosecute).

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.