Opinion
21-35580
10-18-2022
JOE PATRICK FLARITY, Plaintiff-Appellant, v. ARGONAUT INSURANCE COMPANY; DAVID H. PRATHER; HEATHER ORWIG; KIM SHANNON; DANIEL HAMILTON; MARY ROBNETT; PIERCE COUNTY; UNKNOWN PARTIES, Unnamed individual defendants, Defendants-Appellees.
NOT FOR PUBLICATION
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court for the Western District of Washington Robert J. Bryan, District Judge, Presiding No. 3:20-cv-06083-RJB
Before: SILVERMAN, GRABER, and BENNETT, Circuit Judges.
MEMORANDUM
Joe Patrick Flarity appeals pro se from the district court's judgment dismissing his 42 U.S.C. § 1983 action arising out of a tax assessment of his property. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Daewoo Elecs. Am. Inc. v. Opta Corp., 875 F.3d 1241, 1246 (9th Cir. 2017) (judgment on the pleadings under Fed.R.Civ.P. 12(c)); Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir. 2003) (dismissal under Fed.R.Civ.P. 12(b)(6)). We affirm.
The district court properly dismissed Flarity's action as barred by the statute of limitations and because Flarity failed to allege facts sufficient to state a plausible claim. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are to be construed liberally, a plaintiff must present factual allegations sufficient to state a plausible claim for relief); see also Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam) (elements of an equal protection "class of one" claim); Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (discussing requirements of due process); Pasadena Republican Club v. W. Justice Ctr., 985 F.3d 1161, 1167 (9th Cir. 2021) (setting forth tests used to evaluate whether a private actor has engaged in state action for purposes of § 1983); Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013) ("To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth Amendment a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class." (citation and internal quotation marks omitted)); Bagley v. CMC Real Estate Corp., 923 F.2d 758, 760 (9th Cir. 1991) (statute of limitations for § 1983 actions in Washington is three years).
The district court did not abuse its discretion by denying leave to amend because further amendment would have been futile. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review and explaining that leave to amend may be denied when amendment would be futile); Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1072 (9th Cir. 2008) (explaining that "the district court's discretion to deny leave to amend is particularly broad where plaintiff has previously amended the complaint" (citation and internal quotation marks omitted)); Southwick v. Seattle Police Officer John Doe #s 1-5, 186 P.3d 1089, 1093 (Wash.Ct.App. 2008) ("[N]o equitable tolling occurs when a party is not required to exhaust the available administrative remedies before filing suit.").
The district court did not abuse its discretion by denying Flarity's motions for reconsideration because Flarity failed to establish a basis for such relief. See W.D. Wash. R. 7(h)(1) (setting forth grounds for reconsideration under local rules); Bias v. Moynihan, 508 F.3d 1212, 1223 (9th Cir. 2007) (setting forth standard of review applied to a district court's compliance with local rules); Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993) (setting forth standard of review and grounds for reconsideration under the Federal Rules of Civil Procedure).
We reject as lacking factual support in the record Flarity's contentions that the district court was biased against him, acted in bad faith, or denied him due process.
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).
Argonaut Insurance Company's request for appellate attorney's fees, set forth in the answering brief, is denied without prejudice. See Fed. R. App. P. 38 (requiring a separate motion for fees and costs); Winterrowd v. Am. Gen. Annuity Ins. Co., 556 F.3d 815, 828 (9th Cir. 2009) (a request made in an appellate brief does not satisfy Rule 38).
All pending motions and requests are denied.
AFFIRMED.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Flarity's request for oral argument, set forth in the opening brief, is denied.