Charles Kinney v. Frances Rothschild

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 23, 2018
• Docket: 17-56356
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 23 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CHARLES G. KINNEY, No. 17-56356

Plaintiff-Appellant, D.C. No. 2:17-cv-05342-GW-SS

v. MEMORANDUM* FRANCES ROTHSCHILD; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding

Submitted May 15, 2018**

Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.

Charles G. Kinney appeals pro se from the district court’s judgment

dismissing his action alleging violations of federal law. We have jurisdiction

under 28 U.S.C. § 1291. We review for an abuse of discretion a dismissal for

failure to comply with a pre-filing vexatious litigant order. In re Fillbach, 223

* 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. F.3d 1089, 1090-91 (9th Cir. 2000). We affirm.

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

because Kinney failed to comply with the vexatious litigant order entered against

him. See id. at 1091 (litigant may not avoid a vexatious litigant order by filing suit

in a different court).

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

without leave to amend because amendment would be futile. See 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 district court did not abuse its discretion by denying Kinney’s motion to

vacate or reconsider the district court’s dismissal order because Kinney failed to

establish any grounds for such relief. See Sch. Dist. No. 1J, Multnomah Cty., Or.

v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993) (setting forth standard of

review and grounds for relief under Fed. R. Civ. P. 59 and 60).

We reject as meritless Kinney’s contention that the magistrate judge lacked

authority to transfer this case and to enter other interlocutory orders. See 28 U.S.C.

§ 636(b)(1)(A).

Appellees Clark, Marcus, and Chomsky’s motion to be dismissed from this

appeal (Docket Entry No. 12) is granted.

2 17-56356 The parties’ requests for judicial notice (Docket Entry Nos. 9, 13, and 14)

are granted.

AFFIRMED.

3 17-56356