Roy Warden v. Kathleen Robinson

FILED
NOT FOR PUBLICATION OCT 05 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROY WARDEN, No. 14-15803
Plaintiff-Appellant, D.C. No. 4:13-cv-00283-DCB
v.
MEMORANDUM*
KATHLEEN ROBINSON, individually
and in her capacity as Assistant Chief of
Police; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted September 27, 2016**
Before: TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.
Roy Warden appeals pro se from the district court’s summary judgment and
dismissal order in his 42 U.S.C. § 1983 action alleging various claims arising from
his removal from a public park and arrest at a city council meeting. We have
*
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).
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under 28
U.S.C. § 1915(e)(2). Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)
(order). We vacate and remand.
The district court dismissed defendants Walkup, Kozachik, Miranda,
Rankin, Riojas, Villasenor, Couch, and the City of Tucson because Warden failed
to comply with Federal Rule of Civil Procedure 8. However, in his First Amended
Complaint, Warden set forth specific factual allegations against these defendants,
including their unlawful conduct and Warden’s resulting injuries. Warden also
set forth five legal claims, and alleged which conduct supported each claim. See
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (Fed. R. Civ. P. 8(a)(2)
requires only “a short and plain statement of the claim showing that the pleader is
entitled to relief, in order to give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests” (citations and internal quotation marks
omitted)). Accordingly, we vacate the judgment as to these defendants and remand
for further proceedings.
We do not vacate the district court’s summary judgment for defendant
Robinson because on appeal Warden does not challenge the order granting
summary judgment.
We do not consider issues and arguments incorporated by reference on
2 14-15803
appeal, see Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1992), or matters
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).
The parties shall bear their own costs on appeal.
VACATED and REMANDED.
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