Travis Middleton v. Rick Von Geldren , 616 F. App'x 256 ( 2015 )

FILED
NOT FOR PUBLICATION SEP 04 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRAVIS IRVIN MIDDLETON, No. 13-55345
Plaintiff - Appellant, D.C. No. 2:08-cv-08231-SVW-
AGR
v.
RICK VON GELDREN, MEMORANDUM*
Defendant,
and
RAUL VASQUEZ; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted August 25, 2015**
Before: McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.
*
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, Middleton’s
requests for oral argument, set forth in his briefs, are denied.
Travis Irvin Middleton appeals pro se from the district court’s judgment
dismissing his action alleging Racketeer Influenced and Corrupt Organizations Act
(“RICO”) claims and RICO conspiracy claims. We have jurisdiction under 28
U.S.C. § 1291. We review de novo a dismissal for failure to state a claim under
Fed. R. Civ. P. 12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We
affirm.
The district court properly dismissed Middleton’s RICO and RICO
conspiracy claims because Middleton failed to allege facts sufficient to show two
or more predicate criminal acts constituting a pattern of racketeering activity. See
Sanford v. MemberWorks, Inc., 625 F.3d 550, 557, 559 (9th Cir. 2010) (setting
forth elements of a RICO claim under 18 U.S.C. § 1962(c), and explaining that, to
plead a RICO conspiracy claim under § 1962(d), the plaintiff must first adequately
plead a substantive violation of RICO); see also Hebbe, 627 F.3d at 341-42(although pro se pleadings are liberally construed, plaintiff must allege facts
sufficient to state a plausible claim); Cholla Ready Mix, Inc. v. Civish, 382 F.3d
969, 973 (9th Cir. 2004) (conclusory allegations, unwarranted deductions, or
unreasonable inferences need not be accepted as true).
The district court properly dismissed Middleton’s claims against defendant
Hill because he is entitled to judicial immunity. See Ashelman v. Pope, 793 F.2d
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1072, 1075 (9th Cir.1986) (en banc) (judges are entitled to absolute judicial
immunity from a damages action arising out of judicial acts).
The district court properly dismissed the claims against defendants Dudley
and Franklin because they are entitled to prosecutorial immunity. See Kalina v.
Fletcher, 522 U.S. 118, 123-24 (1997) (a prosecutor acting in the scope of her
duties in initiating and pursuing a criminal prosecution is entitled to immunity).
The district court did not abuse its discretion by denying Middleton leave to
amend after providing him with two opportunities to amend and concluding that
further amendment would be futile. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th
Cir. 2000) (en banc) (setting forth standard of review and explaining that leave to
amend should be given unless amendment would be futile); see also Chodos v.
West Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (a district court’s discretion to
deny leave to amend is particularly broad when it has afforded plaintiff one or
more opportunities 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) (per curiam).
We reject Middleton’s contentions that the district court violated his
constitutional rights by dismissing his claims on the basis of the pleadings.
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Middleton’s requests for judicial notice, set forth in his opening brief, are
denied.
AFFIRMED.
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