Charles Kinney v. State Bar of California

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES G. KINNEY, No. 15-55329
Plaintiff-Appellant, D.C. No.
2:14-cv-01591-PSG-MRW
v.
STATE BAR OF CALIFORNIA; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted January 12, 2017**
Pasadena, California
Before: KOZINSKI, McKEOWN, and WATFORD, Circuit Judges.
Charles Kinney appeals various rulings arising out of his suit against the
State Bar of California (“the State Bar”), two California state judges, the City of
Los Angeles (“the City”), and City employees Peter Langsfeld, Carolyn Cooper,
*
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).
and Wesley Tanijiri. We review de novo the district court’s dismissal of Kinney’s
various claims. Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249
F.3d 1132, 1135 (9th Cir. 2001) (summary judgment); Honey v. Distelrath, 195
F.3d 531, 533 (9th Cir. 1999) (judgment on the pleadings); Miller v. Glen & Helen
Aircraft, Inc., 777 F.2d 496, 498 (9th Cir. 1985) (motion to dismiss). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court did not err by dismissing Kinney’s State Bar claims on
Eleventh Amendment grounds. Hirsh v. Justices of the Supreme Court of Cal., 67
F.3d 708, 715 (9th Cir. 1995) (per curiam). And judicial immunity protects the
California state judges from Kinney’s claims against them. Ashelman v. Pope, 793
F.2d 1072, 1075 (9th Cir. 1986) (en banc).
Kinney’s retaliation claims brought under 42 U.S.C. § 1983 against
Langsfeld also fail. Kinney did not sufficiently plead that Langsfeld’s actions
either have had or would have a chilling effect on Kinney’s First Amendment
activities. See Lacey v. Maricopa Cty., 693 F.3d 896, 916–17 (9th Cir. 2012) (en
banc). To the extent Kinney seeks to enjoin the enforcement of state court
decisions deeming him a vexatious litigant, lower federal courts “possess no power
whatever to sit in direct review of state court decisions.” See Atl. Coast Line R.R.
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v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 296 (1970).
The district court also did not err in dismissing all of Kinney’s § 1983 claims
against the City. Insofar as Kinney attempts to advance due process and equal
protection claims because of the City’s apparent failure to follow its civil codes, he
lacks standing for these generalized grievances. Hollingsworth v. Perry, 133 S. Ct.
2652, 2662 (2013). Dismissal of the remainder of Kinney’s § 1983 claim against
the City was also appropriate. Kinney’s second amended complaint does not
specify exactly which “improper custom, policy, and/or practice” he finds
objectionable, nor does it assert that the supposedly problematic policy was
widespread or condoned by officials with final policymaking authority. See Ulrich
v. City & Cty. of San Francisco, 308 F.3d 968, 984–85 (9th Cir. 2002) (describing
the ways to establish municipal liability under Monell v. Department of Social
Services, 436 U.S. 658 (1978)).
Because Cooper is entitled to absolute witness immunity for her complaint
about Kinney to the State Bar, the district court did not err in dismissing Kinney’s
claim against Cooper. See Burns v. Cty. of King, 883 F.2d 819, 821–23 (9th Cir.
1989) (per curiam); cf. Lebbos v. State Bar, 211 Cal. Rptr. 847, 853 (Ct. App.
1985) (“[A]ny communication with an official agency designed to prompt
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investigation by that agency is absolutely privileged.”).
The district court similarly did not err in granting summary judgment on
statute of limitation grounds for Tanijiri on Kinney’s § 1983 claim against him.
When conducting its analysis, the district court appropriately disregarded Kinney’s
uncorroborated testimony that was both self-serving and contradicted by his prior
actions. See Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996).
We review for abuse of discretion the denial of Kinney’s motion to
disqualify the district judge in this case, see United States v. Hernandez-Escarsega,
886 F.2d 1560, 1581 (9th Cir. 1989), and we affirm because the motion entirely
lacks merit.
Kinney’s other contentions are either unpersuasive or inappropriate for
review.
AFFIRMED.
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