Marilyn Scheer v. David Pasternak

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 22, 2018
• Docket: 17-55765
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 22 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARILYN S. SCHEER, No. 17-55765

Plaintiff-Appellant, D.C. No. 2:16-cv-03813-R-JPR

v. MEMORANDUM* DAVID J. PASTERNAK, in his official capacity as President of the Board of Trustee of State Bar of California; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding

Submitted May 15, 2018**

Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.

Attorney Marilyn S. Scheer appeals pro se from the district court’s judgment

dismissing her 42 U.S.C. § 1983 action alleging claims stemming from her

attorney disciplinary proceedings. We have jurisdiction under 28 U.S.C. § 1291.

* 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). Accordingly, Scheer’s request for oral argument, set forth in the opening brief, is denied. We review de novo. San Remo Hotel, L.P. v. San Francisco City & County, 364

F.3d 1088, 1094 (9th Cir. 2004) (issue preclusion); Knievel v. ESPN, 393 F.3d

1068, 1072 (9th Cir. 1995) (failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6)). We affirm.

The district court properly dismissed Scheer’s constitutional challenge to

Cal. Civil Code § 2944.7 as barred by issue preclusion because the claim was

predicated on issues that were resolved against Scheer in a prior state court action.

See White v. City of Pasadena, 671 F.3d 918, 927 (9th Cir. 2012) (explaining

that California’s issue preclusion doctrine “precludes relitigation of issues argued

and decided in prior proceedings” and setting forth six criteria to determine

whether an issue is precluded (citation and internal quotation marks omitted)).

The district court properly dismissed Scheer’s constitutional challenge to

Cal. Rules of Court 9.16(b) because Scheer failed to state a plausible claim for

relief. See Scheer v. Kelly, 817 F.3d 1183, 1189 (9th Cir. 2016) (California

attorney disciplinary proceedings do not violate an attorney’s First Amendment,

due process, or equal protection rights).

We do not consider 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).

2 17-55765 Scheer’s request for this court to reconsider the denial of en banc review in

Scheer v. Kelly, set forth in her opening brief, is denied.

The parties’ motions to take judicial notice (Docket Entry Nos. 12 and 22)

are denied as unnecessary.

AFFIRMED.

3 17-55765