Opinion
21-35661
10-18-2022
JOE PATRICK FLARITY, Plaintiff-Appellant, v. KENNETH ROBERTS; ARGONAUT INSURANCE COMPANY; COUNTY OF PIERCE, a municipal corporation; ET AL, 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NOT FOR PUBLICATION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-06247-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 hearing before the Pierce County Board of Equalization. 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 on the basis of quasi-judicial immunity, 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)); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc) (explaining judicial immunity and that it applies to "those performing judge-like functions," "however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff").
The district court did not abuse its discretion by denying leave to amend because 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); see also Hirsh v. Justices of the Supreme Court of Cal., 67 F.3d 708, 715 (9th Cir. 1995) (judicial defendants are immune in their individual and official capacities).
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 contention that the district court 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).
Flarity's motion to certify a question to the Washington Supreme Court (Docket Entry No. 27) is denied.
AFFIRMED.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).