Charles Kinney v. Three Arch Bay Csd

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 16, 2020
• Docket: 18-56550
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 16 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CHARLES G. KINNEY, No. 18-56550

Plaintiff-Appellant, D.C. No. 8:17-cv-01693-RGK-JC

v. MEMORANDUM* THREE ARCH BAY COMMUNITY SERVICES DISTRICT; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Submitted November 9, 2020**

Before: THOMAS, Chief Judge, TASHIMA and W. FLETCHER, Circuit Judges.

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

dismissing his action alleging violations of the Clean Water Act (“CWA”), 33

U.S.C. § 1365. We have jurisdiction under 28 U.S.C. § 1291. We review de novo

* 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. a dismissal for lack of subject matter jurisdiction under the CWA. Wash. Trout v.

McCain Foods, Inc., 45 F.3d 1351, 1353 (9th Cir. 1995) (dismissal for lack of

subject matter jurisdiction under the CWA). We may affirm on any basis

supported by the record. Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir.

2008). We affirm.

The district court properly dismissed for lack of subject matter jurisdiction

Kinney’s claims in the first amended complaint against defendants Three Arch Bay

Community Services District, Three Arch Bay Association, City of Laguna Beach,

and California Department of Transportation. Dismissal of Kinney’s claims in the

complaint against defendants Viviani, John Chaldu, and Lynn Chaldu was also

proper because Kinney failed to provide defendants with adequate notice of the

alleged CWA violations. See 40 C.F.R. § 135.3 (notice under CWA must provide

sufficient information to permit recipient to identify violation); Wash. Trout, 45

F.3d at 1354-55 (affirming dismissal of CWA action for lack of subject matter

jurisdiction where notice was “insufficient as required by the regulations

promulgated under the CWA”).

The district court did not abuse its discretion by dismissing the first amended

complaint without leave to amend because amendment would have been 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

2 18-56550 to amend is proper when amendment would be futile).

The district court did not abuse its discretion by declaring Kinney a

vexatious litigant and entering a pre-filing review order against him because all of

the requirements for entering a pre-filing review order were met. See Ringgold-

Lockhart v. County of Los Angeles, 761 F.3d 1057, 1062 (9th Cir. 2014) (setting

forth requirements for pre-filing review orders).

The district court did not abuse its discretion by transferring the case to

Judge Klausner in the Western Division of the U.S. District Court for the Central

District of California. See 28 U.S.C. § 1404(b) (intradistrict transfer between

divisions is within the discretion of the district court); Jones v. GNC Franchising,

Inc., 211 F.3d 495, 498 (9th Cir. 2000) (standard of review).

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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