Gavin Davis v. Timothy O'Connor

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 20 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GAVIN B. DAVIS, No. 19-55954
Plaintiff-Appellant, D.C. No. 3:18-cv-02824-BAS-AGS
and
MEMORANDUM*
H-FIN CAPITAL ADVISORS, INC.;
UNITED STATES DEPARTMENT OF
JUSTICE,
Plaintiffs,
v.
TIMOTHY G. O’CONNOR; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Cynthia A. Bashant, District Judge, Presiding
Submitted July 14, 2020**
Before: CANBY, FRIEDLAND, and R. NELSON, Circuit Judges.
*
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).
Gavin B. Davis appeals pro se from the district court’s order dismissing
claims against defendant O’Connor in Davis’s 42 U.S.C. § 1983 action alleging
federal and state law claims. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6).
Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm.
The district court properly dismissed Davis’s claims against O’Connor
because O’Connor is entitled to prosecutorial immunity. See Garmon v. County of
Los Angeles, 828 F.3d 837, 842-43 (9th Cir. 2016) (explaining the application of
absolute prosecutorial immunity); Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969,
973 (9th Cir. 2004) (a party’s conclusory allegations, unwarranted deductions of
fact, or unreasonable inferences need not be accepted as true).
The district court did not abuse its discretion by dismissing Davis’s first
amended complaint (“FAC”) under Federal Rule of Civil Procedure 41(b) because
the FAC contravened the district court’s prior order not to add new frivolous or
duplicative claims. See Pagtalunan v. Galaza, 291 F.3d 639, 640, 642-43 (9th Cir.
2002) (setting forth standard of review and factors to consider in determining
whether to dismiss under Rule 41(b) for failure to comply with a court order).
The district court did not abuse its discretion by reassigning the action to
Judge Bashant under the “low-number rule,” or by denying Davis’s motions for
reassignment and disqualification because Davis failed to demonstrate any basis
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for such relief. See S.D. Cal. Civ. R. 40.1(e); Bias v. Moynihan, 508 F.3d 1212,
1223 (9th Cir. 2007) (“Broad deference is given to a district court’s interpretation
of its local rules.”); see also 28 U.S.C. § 144 (requirements for recusal), § 455
(circumstances requiring disqualification); United States v. Hernandez, 109 F.3d
1450, 1453-54 (9th Cir. 1997) (standard of review; under § 144 and § 455, the
substantive standard for recusal is whether “a reasonable person with knowledge of
all the facts would conclude that the judge’s impartiality might reasonably be
questioned” (citation and internal quotation marks omitted)).
We reject as without merit Davis’s contention that the district court violated
his due process rights by failing to engage with his arguments or erred by failing to
assist with service of process on defendant Unruh.
We do not consider arguments incorporated by reference into the briefs. See
Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (this
court reviews only issues argued specifically in a party’s opening brief).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Davis’s motion for an extension of time to file the reply brief (Docket Entry
No. 42) is denied as unnecessary. The reply brief has been filed.
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All other pending motions and requests are denied.
AFFIRMED.
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