Stephen Yagman v. Eric Garcetti

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 18, 2022
• Docket: 21-55453
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 18 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

STEPHEN YAGMAN, No. 21-55453

Plaintiff-Appellant, D.C. No. 2:20-cv-02722-DMG-JEM

v. MEMORANDUM* ERIC MICHAEL GARCETTI; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding

Submitted July 12, 2022**

Before: SCHROEDER, R. NELSON, and VANDYKE, Circuit Judges.

Stephen Yagman appeals pro se from the district court’s judgment

dismissing his action alleging various federal and state law claims. We have

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

Rule of Civil Procedure 12(b)(6). Colony Cove Props., LLC v. City of Carson, 640

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

The district court properly dismissed Yagman’s excessive fines and

intrastate travel claims because Yagman failed to allege facts sufficient to state a

plausible claim. See United States v. Bajakajian, 524 U.S. 321, 334 (1998)

(explaining that a fine is unconstitutionally excessive under the Eighth Amendment

if its amount is grossly disproportionate to the gravity of the offense); Yagman v.

Garcetti, 852 F.3d 859, 867 (9th Cir. 2017) (explaining that because plaintiff failed

to allege a violation of his constitutional rights, “he cannot maintain derivative

constitutional claims based on that conduct,” including conspiracy and Monell

claims); Nunez ex rel. Nunez v. City of San Diego, 114 F.3d 935, 944 n. 7 (9th Cir.

1997) (noting that neither the Supreme Court nor the Ninth Circuit has recognized

a protected right to intrastate travel); cf. Miller v. Reed, 176 F.3d 1202, 1205 (9th

Cir. 1999) (recognizing that “minor burdens impacting interstate travel” do not

constitute a violation of the right to interstate travel).

The district court did not abuse its discretion by denying further 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 leave to amend may be denied when amendment would

be futile); Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1072 (9th

Cir. 2008) (explaining that “the district court’s discretion to deny leave to amend is

2 21-55453 particularly broad where plaintiff has previously amended the complaint” (citation

and internal quotation marks omitted)).

The district court did not abuse its discretion by denying Yagman’s motions

to impose service costs because Yagman did not show that he sent defendants

waiver requests that complied with Rule 4(d)(1) and because defendants had good

cause to not sign and return a waiver. See Fed. R. Civ. P. 4(d); Estate of Darulis v.

Garate, 401 F.3d 1060, 1063 (9th Cir. 2005) (standard of review).

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.

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