Hubbart v. State of Hawaii Office of Consumer Protection , 362 F. App'x 857 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DWANE LAMAR HUBBART, Doctor, No. 08-16211
DBA St. Mary’s School of Medicine of the
South Pacific, DBA St. Mary’s Medical D.C. No. 1:07-cv-00459-DAE-
Sciences Program, BMK
Plaintiff - Appellant,
MEMORANDUM *
v.
STATE OF HAWAII OFFICE OF
CONSUMER PROTECTION,
DEPARTMENT OF COMMERCE AND
CONSUMER AFFAIRS; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding
Submitted January 11, 2010 **
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Accordingly, Hubbart’s
request for oral argument is denied.
JK/Research
Before: BEEZER, TROTT, and BYBEE, Circuit Judges.
Dwane Lamar Hubbart appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging injuries arising from a state court
consent judgment entered in 1999. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo dismissal on Eleventh Amendment and statute of limitations
grounds. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004). We
affirm.
The district court properly dismissed the claims against the State of Hawaii
Office of Consumer Protection, and the claims for money damages and
retrospective declaratory relief against the state official defendants in their official
capacities, as barred by the Eleventh Amendment. See Yakama Indian Nation v.
State of Wash. Dep’t of Revenue, 176 F.3d 1241, 1245 (9th Cir. 1999). Moreover,
the district court properly dismissed all of the claims as barred by the statute of
limitations under Hawaii law. See Haw. Rev. Stat. § 657-7 (2009) (two-year
statute of limitations for personal injury actions); Haw. Rev. Stat. § 657-1(4)
(2009) (six-year statute of limitations for “[p]ersonal actions of any nature
whatsoever not specifically covered by the laws of the State”).
The district court did not abuse its discretion by denying Hubbart’s motion
for reconsideration because Hubbart did not identify any new evidence, change in
JK/Research 2 08-16211
law, clear error, or manifest injustice. See Sch. Dist. No. 1J, Multnomah County,
Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993) (reviewing district
court’s denial of a motion to reconsider for an abuse of discretion and setting forth
requirements for reconsideration).
Hubbart’s motion for leave to file a substituted initial brief is granted. The
Clerk shall file the substituted initial brief received on November 10, 2008.
AFFIRMED.
JK/Research 3 08-16211