Michael Foley v. Sylvia Teuton

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 12, 2020
• Docket: 19-15269
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 12 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHAEL FOLEY, No. 19-15269

Plaintiff-Appellant, D.C. No. 2:17-cv-01024-JCM-VCF

v. MEMORANDUM* SYLVIA TEUTON; et al.,

Defendants-Appellees,

and

CLARK COUNTY DETENTION CENTER,

Defendant.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Submitted May 6, 2020**

Before: BERZON, N.R. SMITH, and MILLER, Circuit Judges.

Michael Foley appeals pro se from the district court’s judgment dismissing

* 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). his 42 U.S.C. § 1983 action arising out of his arrest and incarceration for failure to

comply with child support orders. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo a dismissal for failure to state a claim under Federal Rule of

Civil Procedure 12(b)(6). Cervantes v. Countrywide Home Loans, Inc., 656 F.3d

1034, 1040 (9th Cir. 2011). We affirm.

The district court properly dismissed Foley’s claims against defendant

Teuton because Teuton is entitled to quasi-judicial immunity. See Ashelman v.

Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc) (explaining judicial immunity

and that it applies to “those performing judge-like functions”).

The district court properly dismissed Foley’s claims against defendant

Wolfson because Wolfson is entitled to prosecutorial immunity. See Meyers v.

Contra Costa Cty. Dep’t of Soc. Servs., 812 F.2d 1154, 1156-57 (9th Cir. 1987)

(discussing prosecutorial immunity in the context of dependency proceedings).

The district court properly dismissed Foley’s claims against defendants

Harris, Bourne and Lombardo because Foley failed to allege facts sufficient to

state a plausible claim. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010)

(although pro se pleadings are liberally construed, a plaintiff must allege facts

sufficient to state a plausible claim); Long v. County. of Los Angeles, 442 F.3d

1178, 1185 (9th Cir. 2006) (elements of a § 1983 claim); see also Engebretson v.

Mahoney, 724 F.3d 1034, 1039 (9th Cir. 2013) (“[P]rison officials charged with

2 19-15269 executing facially valid court orders enjoy absolute immunity from § 1983 liability

for conduct prescribed by those orders[.]”).

The district court properly dismissed Foley’s claims against defendant

Grierson because Foley failed to allege facts sufficient to demonstrate Grierson

personally participated in the violation of any constitutional right. See Maxwell v.

County. of San Diego, 708 F.3d 1075, 1086 (9th Cir. 2013) (“A supervisor is liable

under § 1983 for a subordinate’s constitutional violations if the supervisor

participated in or directed the violations, or knew of the violations and failed to act

to prevent them.” (citation omitted)).

The district court properly dismissed Foley’s claims against defendant Clark

County because Foley failed to allege facts sufficient to demonstrate a

constitutional violation. 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)).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

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

We do not consider facts not presented to the district court. See United

States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).

Lombardo’s request to take judicial notice of the bench warrant, set forth in

3 19-15269 the answering brief (Docket Entry No. 15) is granted.

All other pending requests are denied.

AFFIRMED.

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