Charles Podaras v. City of Menlo Park

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES PODARAS, No. 15-16437
Plaintiff-Appellant, D.C. No. 3:14-cv-03152-SI
v.
MEMORANDUM*
CITY OF MENLO PARK; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Charles Podaras appeals pro se from the district court’s judgment dismissing
his 42 U.S.C. § 1983 action asserting federal and state law claims. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Hebbe v. Pliler, 627
F.3d 338, 341 (9th Cir. 2010) (dismissal under Fed. R. Civ. P. 12(b)(6)); Noel v.
*
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).
Hall, 341 F.3d 1148, 1154 (9th Cir. 2003) (dismissal under Rooker-Feldman
doctrine). We affirm.
The district court properly dismissed Podaras’s § 1983 claims because
Podaras failed to allege facts sufficient to state any plausible claims. See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (to avoid dismissal, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face” (citation and internal quotation marks omitted)); see also Cal. Civ.
Proc. Code § 335.1 (two-year statute of limitations for personal injury actions);
Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009) (§ 1983 claims are
governed by forum state’s statute of limitations for personal injury actions, and
they accrue when the plaintiff knows or should know of the injury that is the basis
of the cause of action).
To the extent Podaras challenged the state court’s denial of his petition for
factual innocence or the state court’s evidentiary rulings, the district court properly
dismissed Podaras’s claims under the Rooker-Feldman doctrine because the claims
constituted a forbidden “de facto appeal” of a prior state court judgment. See Noel,
341 F.3d at 1163-65 (discussing proper application of the Rooker-Feldman
doctrine).
The district court did not abuse its discretion by denying Podaras further
leave to amend his complaint because amendment would have been futile. See
2 15-16437
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).
The district court did not abuse its discretion by denying Podaras’s motion to
alter or amend the judgment because Podaras failed to demonstrate any basis for
relief. See Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255,
1262-63 (9th Cir. 1993) (setting forth grounds for relief from judgment under Fed.
R. Civ. P. 59(e) or 60(b)).
We reject as meritless Podaras’s contentions regarding the applicability of
Estate of Amaro v. City of Oakland, 653 F.3d 808 (9th Cir. 2011) or Federal Rule
of Civil Procedure 52(a).
We do not consider arguments incorporated by reference into the briefs. See
Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (this
court reviews only issues argued specifically in a party’s opening brief).
Podaras’s motion for the appointment of counsel (Docket Entry No. 63) is
denied.
AFFIRMED.
3 15-16437