Sergei Portnoy v. State of California

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 15 2020 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SERGEI PORTNOY, No. 19-16844 Plaintiff-Appellant, D.C. No. 2:19-cv-01504-TLN-CKD

v.

MEMORANDUM*

STATE OF CALIFORNIA,

Defendant-Appellee.

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

Submitted September 8, 2020** Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.

Sergei Portnoy appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to

*

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).

state a claim); Micomonaco v. Washington, 45 F.3d 316, 319 (9th Cir. 1995) (dismissal as barred by Eleventh Amendment immunity). We affirm.

The district court properly dismissed Portnoy’s action against the State of California as barred by the Eleventh Amendment. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (the Eleventh Amendment bars suit against a non-consenting state).

The district court did not abuse its discretion by dismissing Portnoy’s action without 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 explaining that dismissal without leave to amend is proper when amendment would be futile).

AFFIRMED.

2 19-16844