George Nelson, III v. Christopher Aiosa

MEMORANDUM

George Patton Nelson, III, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging violations of his right to sanitary and safe living conditions. We have jurisdiction under 28 U.S.C. § 1291 . We review de novo a dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6), Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir.2010), and. for an abuse of discretion a district court’s order dismissing for failure to prosecute, Ash v. Cvetkov, 739 F.2d 493, 495 (9th Cir.1984). We affirm.

The district court properly dismissed Nelson’s Eighth Amendment claim alleging that defendants violated his right to sanitary and safe living conditions because Nelson was not imprisoned. See Pierce v. Multnomah County, 76 F.3d 1032, 1042 (9th Cir.1996) (“[T]he Eighth Amendment’s prohibition against the malicious or sadistic use of force does not apply ‘until after conviction and sentence.’” (citations omitted)).

The district court did not abuse its discretion in dismissing Nelson’s claim against the Department of Veteran Affairs because Nelson failed to prosecute the case. See Ash, 739 F.2d at 496-97 (setting forth factors for evaluating dismissal…