Michael Bent v. Patricia Lashway

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 21, 2018
• Docket: 17-35962
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHAEL S. BENT, No. 17-35962

Plaintiff-Appellant, D.C. No. 3:16-cv-05916-BHS

v. MEMORANDUM** CHERYL STRANGE, individually and in her official capacity as Acting Secretary of the Washington Department of Social and Health Services (DSHS); et al.*,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding

Submitted August 15, 2018***

Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.

* Cheryl Strange has been substituted for her predecessor Patricia Lashway as Secretary of the State of Washington, Department of Social and Health Services. Steven Wagner has been substituted for his predecessor Mark Greenberg as Acting Assistant Secretary for the Administration for Children and Families. See Fed. R. App. 43(c)(2). ** 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). Michael S. Bent appeals pro se from the district court’s judgment dismissing

his claims against the federal Administration for Children and Families (“ACF”),

and the district court’s summary judgment in favor of the remaining defendants in

his action alleging federal claims. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo. See Guatay Christian Fellowship v. County of San Diego, 670

F.3d 957, 970 (9th Cir. 2011) (cross-motions for summary judgment); Serra v.

Lappin, 600 F.3d 1191, 1195 (9th Cir. 2010) (dismissal under Fed. R. Civ. P.

12(b)(1), 12(b)(6)). We may affirm on any basis supported by the record,

Thomson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008), and we affirm.

The district court properly granted summary judgment for defendant

Washington Department of Social and Health Services (“DSHS”) because Bent

failed to raise a genuine dispute of material fact as to whether DSHS caused a

deprivation of Bent’s Fourteenth Amendment rights in its administration of

Washington’s child support enforcement program under Title IV-D of the Social

Security Act, 42 U.S.C. §§ 651-669b. See Marsh v. County of San Diego, 680 F.3d

1148, 1152 (9th Cir. 2012) (elements of a § 1983 claim); see also Will v. Mich.

Dep’t of State Police, 491 U.S. 58, 71 (1989) (“[A] suit against a state official in

his or her official capacity is not a suit against the official but rather is a suit

2 17-35962 against the official’s office.”).

Summary judgment for defendant Clark County was proper because Bent

failed to raise a genuine dispute of material fact as to whether any policy or custom

of Clark County caused him to suffer a constitutional injury. See Castro v. County

of Los Angeles, 833 F.3d 1060, 1073-76 (9th Cir. 2016) (en banc) (discussing

requirements to establish municipal liability under Monell v. Department of Social

Services, 436 U.S. 658 (1978)).

Dismissal of Bent’s Administrative Procedures Act (“APA”) claim against

ACF was proper because Bent failed to allege facts sufficient to show an agency

action subject to judicial review, and his entitlement to judicial review. See 5

U.S.C. § 702 (“A person suffering legal wrong because of agency action, or

adversely affected or aggrieved by agency action within the meaning of a relevant

statute, is entitled to judicial review thereof.”), § 704 (allowing judicial review of

agency action made reviewable by statute or final agency action for which there is

no other adequate remedy in court); Gallo Cattle Co. v. U.S. Dep’t of Agric., 159

F.3d 1194, 1198-99 (9th Cir. 1998) (explaining conditions required for agency

action to be “final” under the APA); see also FTC v. Standard Oil Co., 449 U.S.

232, 241-42 (1980) (agency action that was not a definitive ruling and had no legal

3 17-35962 force or practical effect upon daily business was not final agency action).

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

claim against ACF without leave to amend because amendment would have been

futile. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000)

(setting forth standard of review and explaining that “[a] district court acts within

its discretion to deny leave to amend when amendment would be futile”).

We reject as unsupported by the record Bent’s contention that the district

court was biased against him.

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).

Bent’s urgent motion for authentication of printed paper copies (Docket

Entry No. 38) is denied. Bent’s request for recusal, set forth in his opening brief

and Docket Entry No. 38, is denied.

AFFIRMED.

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