Robert Newell v. Merrick Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ROBERT H. NEWELL, No. 19-56522

Plaintiff-Appellant, D.C. No. 2:19-cv-06893-CJC-AGR

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Submitted April 20, 2021**

Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges.

Robert H. Newell appeals pro se from the district court’s judgment

dismissing his action for declaratory and injunctive relief challenging the

constitutionality of various federal child pornography statutes. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Federal

* 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). Rule of Civil Procedure 12(b)(1) and 12(b)(6). Colony Cove Props., LLC v. City of

Carson, 640 F.3d 948, 955 (9th Cir. 2011). We affirm.

The district court properly dismissed Newell’s action because Newell failed

to allege facts sufficient to demonstrate an injury-in-fact. 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)). However, a dismissal for lack of subject matter jurisdiction should be

without prejudice. Kelly v. Fleetwood Enters., Inc., 377 F.3d 1034, 1036 (9th Cir.

2004). We affirm the dismissal, and instruct the district court to amend the

judgment to reflect that the dismissal of this action is without prejudice.

We reject as without merit Newell’s contention that his overbreadth

challenge to the statutes excuses the injury-in-fact requirement. See Dream Palace

v. County of Maricopa, 384 F.3d 990, 999 (9th Cir. 2004) (“[T]he overbreadth

doctrine does not affect the rigid constitutional requirement that plaintiffs must

demonstrate an injury in fact to invoke a federal court’s jurisdiction.” (citations and

internal quotation marks omitted)).

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

2 19-56522 in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED; REMANDED with instructions to amend the judgment.

3 19-56522