Daniel McNab v. Gavin Newsom

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 24, 2024
• Docket: 23-55419
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 24 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DANIEL MCNAB, No. 23-55419

Plaintiff-Appellant, D.C. No. 8:22-cv-00843-DSF-E

v. MEMORANDUM* GAVIN NEWSOM,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding

Submitted September 24, 2024**

Before: FERNANDEZ, KLEINFELD, and SILVERMAN, Circuit Judges.

Daniel McNab appeals pro se from the district court’s judgment dismissing

his 42 U.S.C. § 1983 action alleging that California Governor Gavin Newsom

violated his constitutional right to equal protection through state government

orders issued in response to the COVID-19 pandemic. We review de novo a

* 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). dismissal for failure to state a claim under Federal Rule of Civil Procedure

12(b)(6), Naffe v. Frey, 789 F.3d 1030, 1035 (9th Cir. 2015), and we affirm.

The district court properly dismissed McNab’s action because McNab failed

to allege facts sufficient to state a plausible claim that tattoo artists and business

owners, like McNab, were similarly situated to the medical practitioners and

pharmacy professionals classified as essential businesses under the challenged

COVID-19 orders. See United States v. Quintero, 995 F.3d 1044, 1056 (9th

Cir. 2021) (setting forth elements of a class-based equal protection claim).

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

amended complaint without leave to amend because amendment would have been

futile. See Barahona v. Union Pac. R.R. Co., 881 F.3d 1122, 1134 (9th Cir. 2018)

(setting forth standard of review and explaining that amendment is futile if no set

of facts can be proven by amendment that would constitute a valid and sufficient

claim or defense).

AFFIRMED.

2 23-55419