Richard Fleming v. United States

FILED
NOT FOR PUBLICATION SEP 28 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD MAX FLEMING, M.D., No. 13-17230
Plaintiff - Appellant, D.C. No. 3:13-cv-00154-MMD-
VPC
v.
UNITED STATES OF AMERICA, MEMORANDUM*
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Submitted September 21, 2015**
Before: REINHARDT, LEAVY, and BERZON, Circuit Judges.
Richard Max Fleming, M.D., appeals pro se from the district court’s
judgment dismissing his action under the International Covenant on Civil and
Political Rights (“ICCPR”) seeking damages for the loss of his medical license as a
result of his felony conviction. We have jurisdiction under 28 U.S.C. § 1291. We
*
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).
review de novo a dismissal under Fed. R. Civ. P. 12(b)(6). Hebbe v. Pliler, 627
F.3d 338, 341 (9th Cir. 2010). We may affirm on any basis supported by the
record. Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1121 (9th Cir.
2013). We affirm.
The district court properly dismissed Fleming’s action because the ICCPR
does not create enforceable obligations in federal courts. See Serra v. Lappin, 600
F.3d 1191, 1197 (9th Cir. 2010) (concluding that the ICCPR “was ratified on the
express understanding that it was not self-executing and so did not itself create
obligations enforceable in the federal courts” (citation and internal quotation marks
omitted)).
The district court did not abuse its discretion in denying Fleming’s motions
for entry of default and for default judgment. The United States responded timely
to Fleming’s complaint, and Fleming cannot “establish a claim or right to relief.”
Fed. R. Civ. P. 55(d); see also Fed. R. Civ. P. 12(a)(1)-(2) (explaining that the
United States must file a responsive pleading within 60 days of “being served with
the summons and complaint”); Fed. R. Civ. P. 55(a), (b); Eitel v. McCool, 782 F.2d
1470, 1471-72 (9th Cir. 1986) (setting forth the standard of review and factors for
determining whether to enter default judgment under Fed. R. Civ. P. 55).
We reject Fleming’s contention that the United States consented to the
2 13-17230
granting of his motion for summary judgment and that the United States acted in
bad faith.
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) (per curiam).
Fleming’s requests for default judgment and disciplinary action against
defense counsel and defendant, set forth in his reply brief, are denied.
AFFIRMED.
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