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 2021-08

Brett Talmadge v. Dean Williams ( 2021 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                       AUG 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRETT ALAN JAMES TALMADGE,                      No. 20-36106
Plaintiff-Appellant,            D.C. No. 3:19-cv-00318-TMB
v.
MEMORANDUM*
DEAN WILLIAMS; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Submitted August 17, 2021**
Before:      SILVERMAN, CHRISTEN, and LEE, Circuit Judges.
Brett Alan James Talmadge appeals pro se from the district court’s judgment
dismissing his
    42 U.S.C. § 1983
     action alleging constitutional claims arising from
his ongoing probation revocation proceedings. We have jurisdiction under
    28 U.S.C. § 1291
    . We review de novo. ReadyLink Healthcare, Inc. v. State Comp.
*
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).
Ins. Fund,
    754 F.3d 754
    , 758 (9th Cir. 2014) (dismissal as barred by Younger v.
Harris,
    401 U.S. 37
     (1971)); Watison v. Carter,
    668 F.3d 1108
    , 1112 (9th Cir.
2012) (dismissal under
    28 U.S.C. § 1915
    (e)(2)(B)); Resnick v. Hayes,
    213 F.3d 443
    , 447 (9th Cir. 2000) (dismissal under 28 U.S.C. § 1915A). We affirm.
The district court properly dismissed Talmadge’s action as barred under the
Younger abstention doctrine because federal courts are required to abstain from
interfering with pending state court proceedings where “the federal action would
have the practical effect of enjoining the state proceedings.” ReadyLink, 754 F.3d
at 759 (setting forth requirements for Younger abstention in civil cases); Baffert v.
Cal. Horse Racing Bd.,
    332 F.3d 613
    , 617, 621 (9th Cir. 2003) (setting forth
exceptions to Younger abstention; a claimed constitutional violation “does not, by
itself, constitute an exception to the application of Younger abstention”).
Contrary to Talmadge’s contention, revocation of probation does not trigger
the protection of double jeopardy. See Gagnon v. Scarpelli,
    411 U.S. 778
    , 782 n.3
(1973) (“[R]evocation of probation where sentence has been imposed previously is
constitutionally indistinguishable from the revocation of parole.”); Moor v.
Palmer,
    603 F.3d 658
    , 660 (9th Cir. 2010) (holding that the revocation of parole
“is not the type of criminal punishment that would trigger the protections of the
Double Jeopardy Clause”).
We reject as unsupported by the record Talmage’s contention that no
2                                    20-36106
arraignment hearings have occurred or that the state courts of Alaska are
unavailable as a forum for Talmadge’s constitutional claims.
The district court did not abuse its discretion by dismissing Talmadge’s
complaint without leave to amend because amendment would have been futile.
See Gordon v. City of Oakland,
    627 F.3d 1092
    , 1094 (9th Cir. 2010) (setting forth
standard of review and grounds for dismissing without leave to amend).
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).
AFFIRMED.
3                                       20-36106