Peter Kleidman v. Thomas Willhite

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 19, 2022
• Docket: 20-56256
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 19 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PETER KLEIDMAN, No. 20-56256

Plaintiff-Appellant, D.C. No. 2:20-cv-02365-PSG-JDE

v. MEMORANDUM* CALIFORNIA COURT OF APPEAL FOR THE SECOND APPELLATE DISTRICT; TANI GORRE CANTIL-SAKAUYE; MING W. CHIN; AUDREY B. COLLINS; CAROL A. CORRIGAN; MARIANO- FLORENTINO CUELLAR; DIVISION FOUR OF THE CALIFORNIA COURT OF APPEAL FOR THE SECOND APPELLATE DISTRICT; DOES; NORMAL L. EPSTEIN; JUDICIAL COUNCIL OF CALIFORNIA; LEONDRA R. KRUGER; GOODWIN H. LIU; SUPREME COURT OF CALIFORNIA; KATHRYN M. WERDEGAR; THOMAS L. WILLHITE,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted April 11, 2022**

Before: McKEOWN, CHRISTEN, and BRESS, Circuit Judges.

Peter Kleidman appeals pro se from the district court’s judgment dismissing

his action alleging violations of federal and state law in connection with his state

court proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo a dismissal for lack of subject matter jurisdiction under Federal Rule of Civil

Procedure 12(b)(1). Bianchi v. Rylaarsdam, 334 F.3d 895, 898 (9th Cir. 2003)

(Rooker-Feldman doctrine); Canatella v. California, 304 F.3d 843, 852 (9th Cir.

2002) (dismissal for lack of standing). We affirm.

The district court properly dismissed for lack of subject matter jurisdiction

Kleidman’s claims seeking to reopen or set aside rulings in the California state

courts because these claims constitute forbidden “de facto appeal[s]” of prior state

court judgments or are “inextricably intertwined” with those judgments. Noel v.

Hall, 341 F.3d 1148, 1163 (9th Cir. 2003) (“It is a forbidden de facto appeal under

Rooker-Feldman when the plaintiff in federal district court complains of a legal

wrong allegedly committed by the state court, and seeks relief from the judgment

of that court.”); Bianchi, 334 F.3d at 898 (holding that a claim was barred by

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 20-56256 Rooker-Feldman because the court “cannot grant the relief [plaintiff] seeks without

‘undoing’ the decision of the state court”).

The district court properly dismissed for lack of standing Kleidman’s claims

concerning the original jurisdiction of the Supreme Court of California and rules

governing the citation of unpublished decisions in state and federal courts because

Kleidman failed to allege facts sufficient to establish an injury in fact as required

for Article III standing. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61

(1992) (constitutional standing requires an “injury in fact,” causation, and

redressability; “injury in fact” refers to “an invasion of a legally protected interest

which is (a) concrete and particularized . . . and (b) actual or imminent, not

conjectural or hypothetical” (citation and internal quotation marks omitted)); see

also Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (“[T]hreatened injury

must be certainly impending to constitute injury in fact, and . . . allegations of

possible future injury are not sufficient.” (citation and internal quotation marks

omitted)).

A dismissal for lack of subject matter jurisdiction should be without

prejudice to the claims being realleged in a competent court. See Kelly v.

Fleetwood Enters., Inc., 377 F.3d 1034, 1036 (9th Cir. 2004); see also Fleck &

Assocs., Inc. v. City of Phoenix, 471 F.3d 1100, 1102 (9th Cir. 2006) (dismissal for

lack of standing is a dismissal for lack of subject matter jurisdiction); Kougasian v.

3 20-56256 TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir. 2004) (dismissal under Rooker-Feldman

is a dismissal for lack of subject matter jurisdiction). We instruct the district court

to amend the judgment to reflect that the dismissal of the federal claims is without

prejudice.

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).

AFFIRMED with instructions.

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