James Smith v. James Hein

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 7, 2023
• Docket: 22-35658
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 7 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JAMES DARELL SMITH, No. 22-35658

Plaintiff-Appellant, D.C. No. 1:22-cv-00030-CL

v. MEMORANDUM* JAMES K. HEIN; TRANSITION PROJECTS, INC.; HOME FORWARD OF MULTNOMAH COUNTY,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding

Submitted July 18, 2023**

Before: SCHROEDER, RAWLINSON, and BADE, Circuit Judges.

James Darell Smith appeals pro se from the district court’s judgment

dismissing his action alleging disability discrimination under federal statutes and

attempting to challenge a prior state court judgment. We have jurisdiction under

* 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). 28 U.S.C. § 1291. We review de novo a dismissal under Federal Rule of Civil

Procedure 12(b)(6), and we can affirm on any ground supported by the record.

Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm.

The district court properly dismissed as precluded the claims against

defendant Home Forward of Multnomah County because in a prior state court

action between the same parties, these claims were dismissed with prejudice

pursuant to a settlement agreement. See Lawrence v. Steinford Holding B.V. (In re

Dominelli), 820 F.2d 313, 316-17 (9th Cir. 1987) (dismissal of action with

prejudice pursuant to a settlement agreement constitutes a final judgment on merits

and precludes parties from reasserting the same claim in a subsequent action).

Dismissal of the claims against defendants Hein and Transition Projects, Inc.

was proper because these claims are barred by the two-year statute of limitations.

See 42 U.S.C. § 3613(a)(1)(A) (two-year statute of limitations for claims under the

Fair Housing Act); Or. Rev. Stat. § 12.110(1) (two-year statute of limitations for

personal injury claims); Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133,

1137 n.2 (9th Cir. 2002) (for Americans with Disabilities Act claims, courts apply

the statute of limitations for the most analogous state law); Douglas v. Cal. Dep’t

of Youth Auth., 271 F.3d 823 n.11 (9th Cir. 2001) (same for Rehabilitation Act

claims).

2 22-35658 The district court did not abuse its discretion by denying Smith’s request for

appointment of counsel. See Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014)

(concluding that no “exceptional circumstances” justified appointing counsel

because the plaintiff was unlikely to succeed on the merits and had been able to

articulate his legal claims in light of the complexity of issues involved).

We do not consider arguments raised for the first time on appeal or matters

not specifically and distinctly raised and argued in the opening brief. See Padgett

v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Appellees’ motion for judicial notice (Docket Entry No. 22) is granted.

Smith’s motion to file two reply briefs (Docket No. 42) is granted. The

court has considered the reply briefs (Docket Nos. 37 and 43).

AFFIRMED.

3 22-35658