Charles Kinney v. Philip Gutierrez

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 28 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES G. KINNEY, No. 16-56735
Plaintiff-Appellant, D.C. No. 2:16-cv-06168-PSG
v.
MEMORANDUM*
PHILIP GUTIERREZ; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
Charles G. Kinney appeals pro se from the district court’s order dismissing
his action seeking a declaratory judgment. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo. Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir. 2003)
(dismissal based on the Rooker-Feldman doctrine); Vasquez v. Los Angeles
*
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). Kinney’s request for oral
argument, set forth in the opening brief, is denied.
County, 487 F.3d 1246, 1249 (9th Cir. 2007) (dismissal for failure to state a claim
under Fed. R. Civ. P. 12(b)(6)). We affirm.
The district court properly dismissed Kinney’s claims against Presiding
Justices Rothschild and Boren; Justices Chaney, Johnson, Ashmann-Gerst, and
Chavez; and Judges Scheper and Alarcon, for lack of subject matter jurisdiction
under the Rooker-Feldman doctrine because Kinney’s claims constitute a “de facto
appeal” of prior state court judgments, or are “inextricably intertwined” with those
judgments. Noel, 341 F.3d at 1163-65 (discussing application of the Rooker-
Feldman doctrine); see also Henrichs v. Valley View Dev., 474 F.3d 609, 616 (9th
Cir. 2007) (Rooker-Feldman doctrine barred claim for injunction based on
allegedly erroneous and “void” state court judgment because “[g]ranting the
injunction would require the district court to determine that the state court’s
decision was wrong and thus void”).
The district court properly dismissed Kinney’s claims against Clark, Marcus
and Chomsky because Kinney failed to allege facts sufficient to state any plausible
claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” (citation and internal
quotation marks omitted)); see also Stock West, Inc. v. Confederated Tribes of the
Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989) (stating that the
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Declaratory Judgment Act “only creates a remedy and is not an independent basis
for jurisdiction”).
The district court did not abuse its discretion by dismissing the complaint
without leave to amend because amendment would be futile. Cervantes v.
Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth
standard of review and explaining that dismissal without leave to amend is proper
when amendment would be futile).
The magistrate judge did not abuse her discretion by issuing the related case
order. See N.D. Cal. Civ. R. 3-12 (setting forth standard for relation of cases).
The magistrate judge did not abuse her discretion by transferring this action
to the United States District Court for the Central District of California. See 28
U.S.C. §§ 636 (describing magistrate judge’s authority), 1404(a) (authorizing
transfer of action for the convenience of parties and witnesses, in the interest of
justice); Mitchell v. Valenzuela, 791 F.3d 1166, 1168 (9th Cir. 2015) (magistrate
judges may hear and determine non-dispositive matters); Jones v. GNC
Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000) (setting forth factors
relevant to transfer decision).
The district court did not abuse its discretion by transferring this case to
Judge Gutierrez because this case was related to another case then-pending before
Judge Gutierrez. See C.D. Cal. General Order No. 14-03, superseded by General
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Order No. 16-05 (Oct. 31, 2016).
We reject as unsupported by the record Kinney’s contention that Judge
Gutierrez should have recused himself and that other judges were biased.
We do not consider Kinney’s challenges to the district court’s orders
certifying this appeal as frivolous and severing certain claims because they are not
supported by argument. See Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir.
1993).
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).
Appellees’ requests for sanctions and for leave to file a motion for a
vexatious litigant pre-filing review order against Kinney, set forth in the answering
brief, are denied.
Appellees’ corrected motion to take judicial notice (Docket Entry No. 24) is
granted.
AFFIRMED.
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