Carl Gordon v. Gavin Newsom

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 8, 2024
• Docket: 22-55640
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 8 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CARL GORDON, No. 22-55640

Plaintiff-Appellant, D.C. No. 2:21-cv-07270-FMO-MAR v.

GAVIN NEWSOM, in his official capacity MEMORANDUM* as the Governor of the State of California; ROB BONTA, in his official capacity as Attorney General of the State of California; SHIRLEY WEBER, in her official capacity as Secretary of State of the State of California; STEVEN J. REYES, in his official capacity as Chief Counsel Office of the Secretary of State of the State of California; DOES, 1 through 100,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Fernando M. Olguin, District Judge, Presiding

Submitted March 8, 2024**

Before: O’SCANNLAIN, KLEINFELD, and SILVERMAN, 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). Carl Gordon appeals pro se the district court’s judgment dismissing without

leave to amend his action under 42 U.S.C. § 1983 alleging that California’s

September 14, 2021, gubernatorial recall election violated his First and Fourteenth

Amendment rights and California law. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo. Porter v. Jones, 319 F.3d 483, 489 (9th Cir. 2003).

We affirm.

The district court properly dismissed Gordon’s claims for injunctive and

declaratory relief because they are moot and do not fall within the exception to the

mootness doctrine for claims that are capable of repetition, yet evading review. See

id. at 489-90 (“A case becomes moot ‘when the issues presented are no longer

‘live’ or the parties lack a legally cognizable interest in the outcome.’”; the

exception for claims that are capable of repetition, yet evading review may apply

“where: (1) the challenged action was too short in duration to be fully litigated

prior to its cessation or expiration; and (2) there is a reasonable expectation that the

same complaining party will be subjected to the same action again” (citation

omitted)).

The district court properly dismissed Gordon’s claims for damages because

they are barred by the Eleventh Amendment. See Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 100 (1984) (“It is clear . . . that in the absence of consent

a suit in which the State or one of its agencies or departments is named as the

2 defendant is proscribed by the Eleventh Amendment.”); Jackson v. Hayakawa, 682

F.2d 1344, 1350 (9th Cir. 1982) (“Eleventh Amendment immunity extends to

actions against state officers sued in their official capacities because such actions

are, in essence, actions against the governmental entity[.]”).

The district court did not abuse its discretion in dismissing the complaint

without leave to amend because amendment would have been futile. See Brown v.

Stored Value Cards, Inc., 953 F.3d 567, 573-74 (9th Cir. 2020) (setting forth

standard of review and factors that a court should consider in determining whether

to grant leave to amend, including futility of amendment).

The record does not support Gordon’s contentions of judicial misconduct or

bias. See Liteky v. United States, 510 U.S. 540, 555 (1994) (“judicial rulings alone

almost never constitute a valid basis for a bias or partiality motion”).

We decline to consider matters not distinctly raised and argued in the

opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per

curiam).

Gordon’s petition for initial hearing en banc (Dkt. Entry No. 5) is DENIED.

AFFIRMED.