Marilyn Scheer v. David Pasternak ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARILYN S. SCHEER, No. 17-55765
Plaintiff-Appellant, D.C. No. 2:16-cv-03813-R-JPR
v.
MEMORANDUM*
DAVID J. PASTERNAK, in his official
capacity as President of the Board of Trustee
of State Bar of California; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted May 15, 2018**
Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.
Attorney Marilyn S. Scheer appeals pro se from the district court’s judgment
dismissing her 42 U.S.C. § 1983 action alleging claims stemming from her
attorney disciplinary proceedings. We have jurisdiction under 28 U.S.C. § 1291.
*
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). Accordingly, Scheer’s
request for oral argument, set forth in the opening brief, is denied.
We review de novo. San Remo Hotel, L.P. v. San Francisco City & County, 364
F.3d 1088, 1094 (9th Cir. 2004) (issue preclusion); Knievel v. ESPN, 393 F.3d
1068, 1072 (9th Cir. 1995) (failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6)). We affirm.
The district court properly dismissed Scheer’s constitutional challenge to
Cal. Civil Code § 2944.7 as barred by issue preclusion because the claim was
predicated on issues that were resolved against Scheer in a prior state court action.
See White v. City of Pasadena, 671 F.3d 918, 927 (9th Cir. 2012) (explaining
that California’s issue preclusion doctrine “precludes relitigation of issues argued
and decided in prior proceedings” and setting forth six criteria to determine
whether an issue is precluded (citation and internal quotation marks omitted)).
The district court properly dismissed Scheer’s constitutional challenge to
Cal. Rules of Court 9.16(b) because Scheer failed to state a plausible claim for
relief. See Scheer v. Kelly, 817 F.3d 1183, 1189 (9th Cir. 2016) (California
attorney disciplinary proceedings do not violate an attorney’s First Amendment,
due process, or equal protection rights).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
2 17-55765
Scheer’s request for this court to reconsider the denial of en banc review in
Scheer v. Kelly, set forth in her opening brief, is denied.
The parties’ motions to take judicial notice (Docket Entry Nos. 12 and 22)
are denied as unnecessary.
AFFIRMED.
3 17-55765