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 2020-03

Tanya Nemcik v. Jill Fannin ( 2020 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                        MAR 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TANYA LYNN NEMCIK,                              No. 19-15429
Plaintiff-Appellant,            D.C. No. 4:18-cv-05120-JST
v.
MEMORANDUM*
JILL C. FANNIN, Official & Individual
Capacities; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Submitted March 3, 2020**
Before:      MURGUIA, CHRISTEN, and BADE, Circuit Judges.
Tanya Lynn Nemcik appeals pro se from the district court’s judgment
dismissing her action alleging federal claims in connection with her California
state-court child custody proceedings. We have jurisdiction under
    28 U.S.C. § 1291
    . We review de novo a dismissal under Federal Rule of Civil Procedure
*
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).
12(b)(6). Cervantes v. Countrywide Home Loans, Inc.,
    656 F.3d 1034
    , 1040 (9th
Cir. 2011). We affirm.
The district court properly dismissed Nemcik’s action because Nemcik
failed to allege facts sufficient to state a plausible claim. See Mireles v. Waco,
    502 U.S. 9
    , 11-12 (1991) (discussing judicial immunity and its limited exceptions);
Hebbe v. Pliler,
    627 F.3d 338
    , 341-42 (9th Cir. 2010) (although pro se pleadings
are liberally construed, a plaintiff must allege facts sufficient to state a plausible
claim).
The district court did not abuse its discretion in denying leave to amend
because amendment would have been futile. See Cervantes,
    656 F.3d at 1041
    (setting forth standard of review and explaining that dismissal without leave to
amend is proper when amendment would be futile).
The district court did not abuse its discretion by ruling on the motion to
dismiss without oral argument. See Morrow v. Topping,
    437 F.2d 1155
    , 1156-57
(9th Cir. 1971) (setting forth standard of review; district court’s failure to hold oral
argument on a motion to dismiss was not an abuse of discretion or a denial of due
process).
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright,
    587 F.3d 983
    , 985 n.2 (9th Cir. 2009).
We do not consider documents and facts not presented to the district court.
2                                     19-15429
See United States v. Elias,
    921 F.2d 870
    , 874 (9th Cir. 1990).
AFFIRMED.
3                       19-15429