Brett Talmadge v. Dean Williams

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 25, 2021
• Docket: 20-36106
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 25 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BRETT ALAN JAMES TALMADGE, No. 20-36106

Plaintiff-Appellant, D.C. No. 3:19-cv-00318-TMB

v. MEMORANDUM* DEAN WILLIAMS; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Alaska Timothy M. Burgess, District Judge, Presiding

Submitted August 17, 2021**

Before: SILVERMAN, CHRISTEN, and LEE, Circuit Judges.

Brett Alan James Talmadge appeals pro se from the district court’s judgment

dismissing his 42 U.S.C. § 1983 action alleging constitutional claims arising from

his ongoing probation revocation proceedings. We have jurisdiction under 28

U.S.C. § 1291. We review de novo. ReadyLink Healthcare, Inc. v. State Comp.

* 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). Ins. Fund, 754 F.3d 754, 758 (9th Cir. 2014) (dismissal as barred by Younger v.

Harris, 401 U.S. 37 (1971)); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.

2012) (dismissal under 28 U.S.C. § 1915(e)(2)(B)); Resnick v. Hayes, 213 F.3d

443, 447 (9th Cir. 2000) (dismissal under 28 U.S.C. § 1915A). We affirm.

The district court properly dismissed Talmadge’s action as barred under the

Younger abstention doctrine because federal courts are required to abstain from

interfering with pending state court proceedings where “the federal action would

have the practical effect of enjoining the state proceedings.” ReadyLink, 754 F.3d

at 759 (setting forth requirements for Younger abstention in civil cases); Baffert v.

Cal. Horse Racing Bd., 332 F.3d 613, 617, 621 (9th Cir. 2003) (setting forth

exceptions to Younger abstention; a claimed constitutional violation “does not, by

itself, constitute an exception to the application of Younger abstention”).

Contrary to Talmadge’s contention, revocation of probation does not trigger

the protection of double jeopardy. See Gagnon v. Scarpelli, 411 U.S. 778, 782 n.3

(1973) (“[R]evocation of probation where sentence has been imposed previously is

constitutionally indistinguishable from the revocation of parole.”); Moor v.

Palmer, 603 F.3d 658, 660 (9th Cir. 2010) (holding that the revocation of parole

“is not the type of criminal punishment that would trigger the protections of the

Double Jeopardy Clause”).

We reject as unsupported by the record Talmage’s contention that no

2 20-36106 arraignment hearings have occurred or that the state courts of Alaska are

unavailable as a forum for Talmadge’s constitutional claims.

The district court did not abuse its discretion by dismissing Talmadge’s

complaint without leave to amend because amendment would have been futile.

See Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010) (setting forth

standard of review and grounds for dismissing without leave to amend).

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).

AFFIRMED.

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