Gerard Cellette v. Dale Pomerantz

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 10, 2022
• Docket: 21-56135
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 10 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GERARD F. CELLETTE, No. 21-56135

Plaintiff-Appellant, D.C. No. 2:20-cv-04013-SB-MAR

v. MEMORANDUM* DALE POMERANTZ, Board of Parole Hearings (Officer), official capacity; NEAL CHAMBERS, Board of Parole Hearings (Officer), official capacity,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Stanley Blumenfeld, Jr., District Judge, Presiding

Submitted February 15, 2022**

Before: FERNANDEZ, TASHIMA, and FRIEDLAND, Circuit Judges.

California state prisoner Gerard F. Cellette appeals pro se from the district

court’s order denying his motion for a preliminary injunction and dismissing his

due process and ex post facto claims in his 42 U.S.C. § 1983 action. We have

* 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). jurisdiction under 28 U.S.C. § 1292(a)(1). Arc of Cal. v. Douglas, 757 F.3d 975,

992-94 (9th Cir. 2014) (holding this court may exercise pendent appellate

jurisdiction over otherwise non-appealable rulings inextricably intertwined with

orders properly before the court on interlocutory appeal). We review de novo a

dismissal under Federal Rule of Civil Procedure 12(b)(6). Hebbe v. Pliler, 627

F.3d 338, 341 (9th Cir. 2010). We review for an abuse of discretion a denial of a

motion for a preliminary injunction. Jackson v. City & County of San Francisco,

746 F.3d 953, 958 (9th Cir. 2014). We affirm.

The district court properly dismissed Cellette’s due process and ex post facto

claims because his due process claims are barred by claim preclusion, and Cellette

failed to allege facts sufficient to allege an ex post facto violation. See Brodheim v.

Cry, 584 F.3d 1262, 1268 (9th Cir. 2009) (stating claim preclusion applies under

California law if “two actions involve the same injury to the plaintiff and the same

wrong by the defendant”); Watson v. Estelle, 886 F.2d 1093, 1096-97 (9th Cir.

1989) (holding an amendment to a law regulating parole procedure did not violate

the ex post facto clause when the pre-amended law had not been enacted until after

the plaintiff had committed the underlying crime).

The district court did not abuse its discretion by denying Cellette’s motion

for a preliminary injunction because Cellette failed to establish that he is likely to

succeed on the merits of his claims. See Jackson, 746 F.3d at 958 (listing the

2 21-56135 requirements to obtain a preliminary injunction).

We reject as without merit Cellette’s contention that the magistrate judge

engaged in improper behavior.

We do not consider Cellette’s contentions relating to his motion for recusal

because that issue is outside the scope of this appeal.

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.

3 21-56135