                                                                             FILED
                            NOT FOR PUBLICATION                              DEC 08 2014

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



                             FOR THE NINTH CIRCUIT


MICHAEL J. MITCHELL,                              No. 13-16108

               Plaintiff - Appellant,             D.C. No. 2:08-cv-01658-JAM-
                                                  DAD
  v.

SNOWDEN, et al.,                                  MEMORANDUM*

               Defendants - Appellees.


                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                           Submitted November 18, 2014**

Before:        LEAVY, FISHER, and N.R. SMITH, Circuit Judges.

       California state prisoner Michael J. Mitchell appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that prison

officials failed to protect him in violation of the Eighth Amendment. We have

jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion a

          *
             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).
dismissal for failure to comply with a court order. Pagtalunan v. Galaza, 291 F.3d

639, 640-41 (9th Cir. 2002). We affirm.

      The district court did not abuse its discretion in dismissing Mitchell’s action

because Mitchell failed to comply with the court’s order to file a response to

defendants’ motion for summary judgment despite being afforded ample time to do

so and being warned that failure to do so could result in dismissal of his action.

See id. at 642-43 (discussing five factors to consider in deciding whether to dismiss

for failure to comply with a court order).

      The district court did not abuse its discretion in denying Mitchell’s motions

for appointment of counsel because Mitchell failed to demonstrate exceptional

circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (setting

forth standard of review and explaining “exceptional circumstances” requirement).

      We treat the document Mitchell filed on July 11, 2014 (docket No. 24) as an

untimely reply brief and sua sponte grant Mitchell permission to file a late brief.

The Clerk shall file the July 11, 2014 document as Mitchell’s reply brief.

      We do not consider any documents attached to Mitchell’s reply brief that are

not part of the district court record. See Kirshner v. Uniden Corp. of Am., 842 F.2d

1074, 1077 (9th Cir. 1988).

      Defendants’ motion to strike documents attached to Mitchell’s reply brief,


                                             2                                   13-16108
filed on July 31, 2014, is denied as unnecessary.

      AFFIRMED.




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