Peter Mitrano v. United States

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETER P. MITRANO, No. 17-35460
Plaintiff-Appellant, D.C. No. 4:16-cv-00013-BMM
v.
MEMORANDUM*
UNITED STATES OF AMERICA; KERI
A. ADORISIO,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted May 15, 2018**
Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.
Peter P. Mitrano appeals pro se from the district court’s judgment dismissing
his action alleging violations of the Posse Comitatus Act and seeking declaratory
relief. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
dismissal for lack of subject matter jurisdiction. Jachetta v. United States, 653
*
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).
F.3d 898, 903 (9th Cir. 2011) (federal sovereign immunity); Noel v. Hall, 341 F.3d
1148, 1154 (9th Cir. 2003) (Rooker-Feldman doctrine). We affirm.
The district court properly dismissed Mitrano’s claims alleging violations of
the Posse Comitatus Act because Mitrano failed to establish that the United States
had waived sovereign immunity for such claims. See Reed v. U.S. Dep’t of the
Interior, 231 F.3d 501, 504 (9th Cir. 2000) (“The United States can be sued only to
the extent that it has waived sovereign immunity.”); Holloman v. Watt, 708 F.2d
1399, 1401 (9th Cir. 1983) (“The party who sues the United States bears the
burden of pointing to . . . an unequivocal waiver of immunity.”).
The district court properly dismissed Mitrano’s declaratory relief claims
under the Rooker-Feldman doctrine because Mitrano’s claims constitute a “de
facto appeal” of a prior, final state court judgment. See Noel, 341 F.3d at 1163 (“It
is a forbidden de facto appeal under Rooker-Feldman when the plaintiff in federal
district court complains of a legal wrong allegedly committed by the state court,
and seeks relief from the judgment of that court.”).
The district court did not abuse its discretion by dismissing Mitrano’s
complaint without leave to amend because amendment would have been futile.
See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000) (setting
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forth standard of review and explaining that dismissal without leave to amend is
proper when amendment would be futile).
We need not resolve whether the district court should have reviewed the
magistrate judge’s findings and recommendations de novo instead of for clear error
because we conclude upon our de novo review that the district court properly
dismissed Mitrano’s action for lack of subject matter jurisdiction.
We do not consider arguments not specifically and distinctly raised and
argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir.
2009).
Mitrano’s request for a third extension of time to file a reply brief (Docket
Entry No. 18) is denied.
AFFIRMED.
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