James Murphy v. Hannah Dockery-Mosebach

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 3 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JAMES MICHAEL MURPHY, MD, No. 22-35392

Plaintiff-Appellant, D.C. No. 3:21-cv-01045-IM

v. MEMORANDUM* HANNAH DOCKERY-MOSEBACH; UNITED STATES OF AMERICA,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Karin J. Immergut, District Judge, Presiding

Submitted May 29, 2024**

Before: FRIEDLAND, BENNETT, and SANCHEZ, Circuit Judges.

James Michael Murphy appeals pro se from the district court’s judgment

dismissing his action alleging state law tort claims against Dockery-Mosebach and

the United States, which substituted itself as a defendant pursuant to 28 U.S.C.

§ 2679(d). We have jurisdiction under 28 U.S.C. § 1291. 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). district court’s dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6).

Prodanova v. H.C. Wainwright & Co., LLC, 993 F.3d 1097, 1105 (9th Cir. 2021).

We affirm.

The district court properly dismissed Murphy’s claim for wrongful initiation

of civil proceedings because Murphy failed to allege facts sufficient to show that

Dockery-Mosebach commenced the adversary proceeding in Murphy’s bankruptcy

case without probable cause or with malice. See Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (to avoid dismissal, “a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face” (citation and

internal quotation marks omitted)); Alvarez v. Retail Credit Ass’n of Portland, Or.,

Inc., 381 P.2d 499, 501 (Or. 1963) (elements of a wrongful initiation of civil

proceedings claim under Oregon law).

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

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 denial of leave to

amend is proper if amendment would be futile).

In light of our disposition, we do not consider any of Murphy’s remaining

contentions.

AFFIRMED.

2 22-35392