Robert Newell v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT H. NEWELL, No. 19-56522
Plaintiff-Appellant, D.C. No. 2:19-cv-06893-CJC-AGR
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted April 20, 2021**
Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges.
Robert H. Newell appeals pro se from the district court’s judgment
dismissing his action for declaratory and injunctive relief challenging the
constitutionality of various federal child pornography statutes. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Federal
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Rule of Civil Procedure 12(b)(1) and 12(b)(6). Colony Cove Props., LLC v. City of
Carson, 640 F.3d 948, 955 (9th Cir. 2011). We affirm.
The district court properly dismissed Newell’s action because Newell failed
to allege facts sufficient to demonstrate an injury-in-fact. See Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560-61 (1992) (constitutional standing requires an “injury
in fact,” causation, and redressability; “injury in fact” refers to “an invasion of a
legally protected interest which is (a) concrete and particularized . . . and (b) actual
or imminent, not conjectural or hypothetical” (citation and internal quotation marks
omitted)). However, a dismissal for lack of subject matter jurisdiction should be
without prejudice. Kelly v. Fleetwood Enters., Inc., 377 F.3d 1034, 1036 (9th Cir.
2004). We affirm the dismissal, and instruct the district court to amend the
judgment to reflect that the dismissal of this action is without prejudice.
We reject as without merit Newell’s contention that his overbreadth
challenge to the statutes excuses the injury-in-fact requirement. See Dream Palace
v. County of Maricopa, 384 F.3d 990, 999 (9th Cir. 2004) (“[T]he overbreadth
doctrine does not affect the rigid constitutional requirement that plaintiffs must
demonstrate an injury in fact to invoke a federal court’s jurisdiction.” (citations and
internal quotation marks omitted)).
We do not consider matters not specifically and distinctly raised and argued
2 19-56522
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED; REMANDED with instructions to amend the judgment.
3 19-56522