Steven Polesky v. John Morrison

FILED
NOT FOR PUBLICATION JUN 24 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
STEVEN G. POLESKY, doing business as No. 09-35124
Big Sky Insurance, doing business as
Supplemental Benefits Association of D.C. No. 1:07-cv-00042-RFC-
Montana; and LEANN J. POLESKY, CSO
individually and as guardians ad litem for
minor child, K.G.P,
MEMORANDUM *
Plaintiffs - Appellants,
v.
JOHN MORRISON, State Auditor and
Commissioner of Insurance; JULIE
GUNLOCK, Investigator, State Auditor
and Commissioner of Insurance;
ROBERTA CROSS GUNS, Special
Assistant Attorney General, in her official
and individual capacity; THE STATE OF
MONTANA; DOES, 1 through 10,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted June 10, 2010 **
Portland, Oregon
Before: THOMPSON, McKEOWN and PAEZ, Circuit Judges.
Steven G. Polesky and members of his family (collectively, “Polesky”)
appeal from the district court’s dismissal of federal and state law claims against the
State of Montana (the “State”), Montana Insurance Commissioner John Morrison,
and other state officials sued in their official and personal capacities. Appellants
also challenge the district court’s grant of summary judgment to state investigators
Michael Bloom and Julie Gunlock. We have jurisdiction under 28 U.S.C. § 1291to review the final decision of the district court, and we affirm.1
Before turning to the issues raised on appeal, we note that a number of the
arguments raised in Polesky’s brief were never raised below and are therefore
waived. See Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996)
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1
We decline appellees’ suggestion that we summarily affirm because of
Polesky’s failure to comply with the Federal Rules of Civil Procedure (FRAP) and
Ninth Circuit Rules. We note, however, that Polesky’s opening brief does not
contain a summary of the argument, FRAP 28(a)(8), or an appropriate statement of
the standard of review for each issue, FRAP 28(a)(9). Furthermore, it was
unaccompanied by a separately bound excerpt of record (which must include
copies of the relevant district court decisions and a notice of appeal). 9th Cir. R.
30-1.
2
(holding that a party who “fails to file timely objections to a magistrate judge’s
nondispositive order with the district judge to whom the case is assigned forfeits its
right to appellate review of that order”). In particular, Polesky failed to object to
the magistrate judge’s order denying his motion to conduct discovery prior to the
determination of the motion for summary judgment. Polesky further failed to
object to the magistrate judge’s failure to sua sponte grant him leave to amend his
complaint. Finally, Polesky failed to object to having the case heard by the
magistrate judge. Thus, all three of these arguments are waived. Id.Polesky also argues that the district court should not have dismissed the
State and state officers acting in their official capacities because the injunctive
relief he sought against them—a public apology—was not barred by the Eleventh
Amendment or, alternatively, because the State had waived sovereign immunity.
These arguments are wholly misguided; the State and state officials were not
dismissed because of Eleventh Amendment immunity.
Turning to those issues properly before us, we are unconvinced by Polesky’s
argument that the district court erred in dismissing the State and state officers sued
in their official capacities as a result of Polesky’s failure to respond to the State’s
motion to dismiss. Before dismissing an action for failure to comply with filing
deadlines, a district court is required to weigh several factors, including: “(1) the
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public’s interest in expeditious resolution of litigation; (2) the court’s need to
manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy
favoring disposition of cases of their merits; and (5) the availability of less drastic
sanctions.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).
The district court properly identified this standard and did not abuse its
discretion in applying it, especially in light of Polesky’s ample opportunities to
respond to the State’s motion. Thus, we affirm the district court’s dismissal of the
State and the state officers sued in their official capacities. For the same reasons,
we also affirm the district court’s dismissal of Morrison sued in his personal
capacity.
As to the grant of summary judgment to Bloom and Gunlock, Polesky has
failed to raise any genuine issue of material fact that would render summary
judgment inappropriate. Indeed, his opening brief fails to identify any evidence in
the record that would support his claims, a deficiency only further exacerbated by
his failure to submit any relevant excerpts of record. Nor can we identify any such
evidence on an independent review of the record.
Notably, there is no affidavit by Polesky stating that he did not consent to
Bloom and Gunlock entering the business or retrieving the records, nor is there any
other evidence suggesting there was a lack of consent. Likewise, he did not
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present an affidavit or any other evidence that Bloom or Gunlock engaged in any
type of threatening or coercive actions to secure his consent. Nor is there any
evidence that Bloom or Gunlock had anything to do with the dissemination of the
allegedly harmful press release other than Polesky’s bald assertions in his briefs.
We thus affirm the district court’s grant of summary judgment to Bloom and
Gunlock.
AFFIRMED.
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