Patricia Bauerle v. Patricia Bauerle , 703 F. App'x 611 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICIA BAUERLE, No. 17-15544
Plaintiff-Appellant, D.C. No. 4:16-cv-00614-RCC
v.
MEMORANDUM*
PATRICIA BAUERLE; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief Judge, Presiding
Submitted November 15, 2017**
Before: CANBY, TROTT, and GRABER, Circuit Judges.
Patricia Bauerle appeals pro se from the district court’s judgment dismissing
her action alleging federal claims. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo a sua sponte dismissal for failure to state a claim, Barrett v.
Belleque, 544 F.3d 1060, 1061 (9th Cir. 2008), and we affirm.
*
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).
The district court properly dismissed Bauerle’s action as frivolous because
Bauerle’s claims lacked any arguable basis in law or fact. See Neitzke v. Williams,
490 U.S. 319, 325 (1989) (a “frivolous” claim lacks an arguable basis either in law
or in fact; the “term ‘frivolous’ . . . embraces not only the inarguable legal
conclusion, but also the fanciful factual allegation”); Sparling v. Hoffman Constr.
Co., 864 F.2d 635, 638 (9th Cir. 1988) (court may sua sponte dismiss for failure to
state a claim without notice or an opportunity to respond where plaintiff cannot
possibly win relief).
The district court did not abuse its discretion in dismissing Bauerle’s third
amended complaint without leave to amend because further amendment would be
futile. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th
Cir. 2011) (setting forth standard of review and explaining that dismissal without
leave to amend is proper when amendment would be futile).
We do not consider allegations raised for the first time on appeal. See
Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Bauerle’s motion to file a supplemental reply brief (Docket Entry No. 21) is
granted. The Clerk shall file the reply brief submitted at Docket Entry No. 22.
International Business Machines Corporation’s request for attorney’s fees
2 17-15544
and costs, set forth in its answering brief, is denied without prejudice to filing a
separate motion for attorney’s fees and bill of costs.
AFFIRMED.
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