Raymond Pierson, III v. Sutter Health

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 24, 2022
• Docket: 21-15220
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 24 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RAYMOND HAMEL PIERSON III, pro se, No. 21-15220

Plaintiff-Appellant, D.C. No. 2:20-cv-00124-TLN-KJN

v. MEMORANDUM* SUTTER HEALTH; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Troy L. Nunley, District Judge, Presiding

Submitted May 17, 2022**

Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.

Raymond Hamel Pierson III appeals pro se from the district court’s

judgment in his action alleging federal and state law claims arising out of the

temporary suspension of his hospital admitting privileges. We have jurisdiction

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

* 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). Pierson’s request for oral argument, set forth in the opening brief, is denied. under Federal Rule of Civil Procedure 12(b)(6). Puri v. Khalsa, 844 F.3d 1152,

1157 (9th Cir. 2017). We affirm.

Because Pierson fails to raise a meaningful challenge to the district court’s

dismissal of his claims against Sutter Health, any such challenge is waived. See

Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“[W]e

will not consider any claims that were not actually argued in appellant’s opening

brief.”); Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1993) (issues not

supported by argument in pro se appellant’s opening brief are waived).

The district court properly dismissed Pierson’s claims against the unserved

defendants. See Silverton v. Dep’t of Treasury, 644 F.2d 1341, 1345 (9th Cir.

1981) (“A District Court may properly on its own motion dismiss an action as to

defendants who have not moved to dismiss where such defendants are in a position

similar to that of moving defendants or where claims against such defendants are

integrally related.”).

The district court did not abuse its discretion in denying Pierson leave to

amend because amendment would have been futile. See Cervantes v. Countrywide

Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of

review and stating that leave to amend may be denied where amendment would be

futile). Contrary to Pierson’s contention, Pierson is not entitled to amend as a

matter of course because more than 21 days have passed since Pierson was served

2 21-15220 with Sutter’s motion to dismiss. See Fed. R. Civ. P. 15(a)(1)(B).

The district court did not abuse its discretion in denying Pierson’s motion for

post-judgment relief because Pierson failed to demonstrate any basis for relief. See

Fed. R. Civ. P. 59(e); Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir.

2001) (setting forth standard of review and discussing factors for granting a motion

for reconsideration under Rule 59(e)).

The district court did not abuse its discretion in denying Pierson’s request

for electronic filing privileges. See E.D. Cal. R. 133(b) (explaining electronic

filing rules and exceptions); Bias v. Moynihan, 508 F.3d 1212, 1223 (9th Cir.

2007) (setting forth standard of review and stating that “[b]road deference is given

to a district court’s interpretation of its local rules”).

Contrary to Pierson’s contention, Pierson was properly served with the

motion to dismiss. See Fed. R. Civ. P. 5(b)(2)(C) (service by mail at a person’s

last known address is “complete upon mailing”); S. Cal. Darts Ass’n v. Zaffina,

762 F.3d 921, 928 (9th Cir. 2014) (service is not necessarily deficient “even if it is

assumed that, for some reason, the motion was not ultimately conveyed to” the

intended recipient).

We reject as meritless Pierson’s contention that service was invalid under

California’s Code of Civil Procedure and that the district court failed to construe

his pro se filings liberally.

3 21-15220 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).

Pierson’s requests for sanctions and declaratory relief, set forth in the

opening and reply briefs, are denied.

AFFIRMED.

4 21-15220