                                                                            FILED
                            NOT FOR PUBLICATION                             MAR 24 2016

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


TONY ASBERRY,                                    No. 15-15113

               Plaintiff - Appellant,            D.C. No. 2:11-cv-02462-KJM-
                                                 KJN
 v.

MATTHEW CATE, Secretary of                       MEMORANDUM*
Corrections of the C.D.C.R.; et al.

               Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Kimberly J. Mueller, District Judge, Presiding

                             Submitted March 15, 2016**

Before:        GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.

      Tony Asberry, a California state prisoner, appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging federal and state

law claims. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
of discretion the imposition of discovery sanctions under Federal Rule of Civil

Procedure 37. Payne v. Exxon Corp., 121 F.3d 503, 507 (9th Cir. 1997).

We affirm.

      The district court did not abuse its discretion by dismissing Asberry’s action

under Fed. R. Civ. P. 37(d) on the basis of Asberry’s failure to appear at a court-

ordered deposition because Asberry’s failure to appear was willful, and the district

court had imposed monetary sanctions against Asberry for his previous failure to

appear and warned Asberry of the possibility of terminating sanctions. See Fed. R.

Civ. P. 37(d); Payne, 121 F.3d at 507 (setting forth five factors courts must weigh

when dismissing a case for noncompliance with court-ordered discovery under

Rule 37 and noting that the noncompliance must be due to “willfulness, fault, or

bad faith”).

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      All pending requests are denied.

      AFFIRMED.




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