Donald Benton v. Timothy Cory

FILED
NOT FOR PUBLICATION JUL 17 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DONALD EDWARD BENTON, No. 10-17785
Plaintiff - Appellant, D.C. No. 2:10-cv-00907-RLH-
PAL
v.
TIMOTHY S. CORY; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, District Judge, Presiding
Submitted June 26, 2012 **
Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges.
Donald Edward Benton appeals pro se from the district court’s order
dismissing his civil rights complaint against various parties involved in his Chapter
7 bankruptcy case for lack of subject matter jurisdiction and failure to state a claim.
*
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). Accordingly, Benton’s
request for oral argument is denied.
We have jurisdiction under 28 U.S.C. § 1291. We review do novo, Colony Cove
Props., LLC v. City of Carson, 640 F.3d 948, 955 (9th Cir. 2011), and we affirm.
The district court properly concluded that, under the Barton doctrine, it
lacked subject matter jurisdiction over Benton’s claims against bankruptcy trustee
Timothy S. Cory and his counsel Cici Cunningham and Christine Roberts. See
Beck v. Fort James Corp. (In re Crown Vantage, Inc.), 421 F.3d 963, 970, 972 (9th
Cir. 2005) (Barton doctrine applies to “a bankruptcy trustee or other officer
appointed by the bankruptcy court for acts done in the officer’s official capacity,”
even after the bankruptcy is closed).
The district court properly concluded that August Landis, Assistant United
States Trustee for Benton’s case, possesses quasi-judicial immunity, because
Landis’ review of Cory’s conduct was undertaken in the course of his employment.
See Balser v. Dep’t. of Justice, 327 F.3d 903, 910 (9th Cir. 2003).
The district court also properly determined that Benton failed to state a claim
against William Noall, Gregory Garman, and Matthew Zirzow because any claims
are barred by a prior settlement agreement, and Benton failed to state a claim
against Philip Gerson because the allegations of his involvement in the relevant
events are conclusory. Benton’s conclusory statements regarding Gerson’s
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involvement in those events are insufficient to state a claim. See Woodrum v.
Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989).
The district court did not abuse its discretion by failing to recuse itself sua
sponte for bias, because Benton’s allegations of judicial bias arise solely from the
district court’s rulings and orders in this case. See Liteky v. United States, 510 U.S.
540, 555 (1994) (“judicial rulings alone almost never constitute a valid basis for a
bias or partiality motion”).
We lack jurisdiction to review the district court’s January 3, 2011 order
sanctioning Benton as a vexatious litigant, as Benton never filed a notice of appeal
from the order, and the exception for a premature notice of appeal does not apply.
See Kennedy v. Applause, Inc., 90 F.3d 1477, 1482-83 (9th Cir. 1996) (a premature
notice of appeal is not effective where more than a ministerial task remains to be
done by the court and the appellant could not be said to have reasonably confused
the court’s order with a final judgment).
We grant Benton’s request for judicial notice of court filings in other
proceedings, but deny as unnecessary his request for judicial notice of legal
authorities. See Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011).
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Benton’s remaining contentions lack merit.
AFFIRMED.
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