Jesse Moten v. C. Ducart

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 20, 2018
• Docket: 17-16903
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 20 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JESSE T. MOTEN, No. 17-16903

Plaintiff-Appellant, D.C. No. 5:16-cv-04821-LHK

v. MEMORANDUM* C. E. DUCART; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Lucy H. Koh, District Judge, Presiding

Submitted June 12, 2018**

Before: RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges.

California state prisoner Jesse T. Moten appeals pro se from the district

court’s judgment dismissing his action brought under 42 U.S.C. § 1983 and the

Racketeer Influenced and Corrupt Organizations Act (“RICO”). We have

jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to

* 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). state a claim under 28 U.S.C. § 1915A. Hamilton v. Brown, 630 F.3d 889, 892

(9th Cir. 2011). We affirm.

The district court properly dismissed Moten’s RICO claim because Moten

failed to allege facts sufficient to state a plausible claim for relief. See Hebbe v.

Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (though pro se pleadings are to be

liberally construed, a plaintiff must still present factual allegations sufficient to

state a plausible claim for relief); Living Designs, Inc. v. E.I. Dupont de Nemours

& Co., 431 F.3d 353, 361 (9th Cir. 2005) (elements of a civil RICO claim); Bowne

v. Oistead, 125 F.3d 800, 806 (9th Cir. 1997) (“Civil rights violations . . . do not

fall within the statutory definition of ‘racketeering activity.’”).

We reject as meritless Moten’s contentions concerning joinder, and Judge

Koh’s failure to recuse.

We do not consider arguments and allegations raised for the first time on

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

Moten’s request for judicial notice, set forth in his opening brief, is denied.

AFFIRMED.

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