Memo Parker v. Robert Nishiyama ( 2011 )

FILED
NOT FOR PUBLICATION JUN 21 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MEMO PARKER, No. 09-17831
Plaintiff - Appellant, D.C. No. 3:08-cv-04750-CRB
v.
MEMORANDUM *
ROBERT NISHIYAMA; PETER
HOYLE; THOMAS ALLMAN;
MENDOCINO COUNTY SHERIFF’S
OFFICE; COUNTY OF MENDOCINO,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted April 13, 2011
San Francisco, California
Before: FERNANDEZ and RAWLINSON, Circuit Judges, and WELLS, Senior
District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Lesley Wells, Senior U.S. District Judge for the
Northern District of Ohio, sitting by designation.
Appellant Memo Parker (Parker) challenges the district court’s dismissal of
his Sixth Amendment and conspiracy claims because Parker failed to sufficiently
allege that he was substantially prejudiced by an unlawful interrogation. Parker
also asserts that the district court abused its discretion in denying leave to amend
the complaint.
1. The district court properly dismissed Parker’s Sixth Amendment claims.
Parker’s conclusory allegation that he “suffered prejudice or substantial detriment”
failed to satisfy the requisite pleading standards. See Telesaurus VPC, LLC v.
Power, 623 F.3d 998, 1003 (9th Cir. 2010).
2. In his opposition to the motion to dismiss, Parker alleged that he was
prejudiced by the unlawful interrogation because he was forced to accept a plea
offer. The district court properly held that Parker’s untimely allegation could not
cure the complaint’s defects. See Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th
Cir. 2003) (“In determining the propriety of a Rule 12(b)(6) dismissal, a court may
not look beyond the complaint to a plaintiff’s moving papers, such as a
memorandum in opposition to a defendant’s motion to dismiss.”) (citation omitted)
(emphasis in the original). In any event, Parker’s speculative allegation regarding
2
the plea offer is insufficient, as it lacks the requisite facial plausibility. See
Caviness v. Horizon Comm. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010).
3. Because Parker failed to sufficiently allege a Sixth Amendment violation,
the district court properly dismissed Parker’s related conspiracy claim. See San
Diego Police Officers’ Ass’n v. San Diego City Employees’ Retirement Sys., 568
F.3d 725, 740 (9th Cir. 2009) (“[T]he absence of any actionable constitutional
violation negates by definition the existence of a conspiracy to violate
constitutional rights.”) (citation omitted).
4. The district court did not abuse its discretion in dismissing Parker’s claims
without leave to amend, as “other facts consistent with the challenged pleading
could not possibly cure the deficiency.” Abagninin v. AMVAC Chem. Corp., 545
F.3d 733, 742 (9th Cir. 2008) (citation omitted). Parker’s counsel also informed
the district court that there was nothing to be gained by further amendments. See
Krainski v. Nev. ex rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d 963,
972 (9th Cir. 2010) (“Here, [Parker] conceded that there were no new facts that
[he] would include in [his] complaint to overcome its shortcomings. Under the
3
circumstances . . . the district court did not abuse its discretion in denying [Parker]
leave to amend [his] complaint.”).1
AFFIRMED.
1
Parker did not challenge in his opening brief the district court’s rulings in
favor of Thomas Allman, Mendocino County Sheriff’s Office, and the County of
Mendocino. As a result, Parker has waived any challenges to those rulings. See
Cook v. AVI Casino Enter., Inc., 548 F.3d 718, 726 n.6 (9th Cir. 2008).
4