Richard Ferry v. Kevin Doohan

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RICHARD FERRY, No. 18-35228

Plaintiff-Appellant, D.C. No. 3:18-cv-00153-AC

v. MEMORANDUM* KEVIN DOOHAN, Washington County Community Corrections (WCCC) Post- Prison Supervision Officer; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Marco A. Hernandez, District Judge, Presiding

Submitted January 15, 2019**

Before: TROTT, TALLMAN, and CALLAHAN, Circuit Judges.

Richard Ferry appeals pro se from the district court’s order denying his

motion for a preliminary injunction in his 42 U.S.C. § 1983 action alleging

constitutional claims. We have jurisdiction under 28 U.S.C. § 1291(a)(1). We

* 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). review for an abuse of discretion. Am. Hotel & Lodging Ass’n v. City of Los

Angeles, 834 F.3d 958, 962 (9th Cir. 2016). We affirm.

The district court did not abuse its discretion by denying Ferry’s motion for

a preliminary injunction because Ferry failed to establish that he is likely to

succeed on the merits of his claim that the conditions of his supervised release

requiring him to participate in polygraph examinations violate his Fifth

Amendment right against self-incrimination. See Jackson v. City & County of San

Francisco, 746 F.3d 953, 958 (9th Cir. 2014) (plaintiff seeking preliminary

injunction must establish that he is likely to succeed on the merits, he is likely to

suffer irreparable harm in the absence of preliminary relief, the balance of the

equities tips in his favor, and an injunction is in the public interest); United States

v. Antelope, 395 F.3d 1128, 1134-35 (9th Cir. 2005) (conditions of supervised

release that require participation in polygraph examinations implicate Fifth

Amendment right against self-incrimination where the risk of incrimination in a

criminal prosecution is real and appreciable).

We do not consider arguments and allegations raised for the first time on

appeal, see Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009), and we do not

consider documents not presented to the district court, see United States v. Elias,

2 921 F.3d 870, 874 (9th Cir. 1990).

Ferry’s request for judicial notice, set forth in his opening brief, is denied.

AFFIRMED.