Steven Foster v. Tani Cantil-Sakauye

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 3, 2018
• Docket: 17-17332
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 3 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

STEVEN J. FOSTER, No. 17-17332

Plaintiff-Appellant, D.C. No. 4:17-cv-02122-JSW

v. MEMORANDUM* TANI G. CANTIL-SAKAUYE, Chief Justice; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding

Submitted November 27, 2018**

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

Steven J. Foster appeals pro se from the district court’s judgment dismissing

his 42 U.S.C. § 1983 action alleging due process claims stemming from California

State Bar (“State Bar”) reciprocal discipline procedures. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo a dismissal under Fed. R. Civ. P.

* 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). 12(b)(1) and 12(b)(6). Colony Cove Props., LLC v. City of Carson, 640 F.3d 948,

955 (9th Cir. 2011). We may affirm on any basis supported by the record.

Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm.

Dismissal of Foster’s as-applied due process claim was proper because it

was not prudentially ripe. See Bishop Paiute Tribe v. Inyo County, 863 F.3d 1144,

1154 (9th Cir. 2017) (prudential ripeness component of ripeness inquiry considers

fitness of issues for judicial decision and hardship to parties of withholding court

consideration). 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 claim is without prejudice.

The district court properly dismissed Foster’s facial due process challenge

because Foster failed to allege facts sufficient to state a plausible claim. See

Ashcroft v. Iqbal, 556 U.S. 662, 678, 681 (2009) (to avoid dismissal, “a complaint

must contain sufficient factual matter, accepted as true, to state a claim to relief

that is plausible on its face” and conclusory allegations are not entitled to be

assumed true (citation and internal quotation marks omitted)); Rosenthal v. Justices

of the Supreme Court of Cal., 910 F.2d 561, 564 (9th Cir. 1990) (procedural due

process requires a lawyer subject to discipline to be provided with notice and an

opportunity to be heard); cf. In re Kramer, 282 F.3d 721, 725 (9th Cir. 2002)

2 17-17332 (function of a court seeking to impose reciprocal discipline is “far different” from

that of a court seeking to impose discipline in the first instance).

The district court did not abuse its discretion by denying further leave to

amend because amendment would have been futile. See Chappel v. Lab. Corp. of

Am., 232 F.3d 719, 725-26 (9th Cir. 2000) (setting forth standard of review and

explaining that “[a] district court acts within its discretion to deny leave to amend

when amendment would be futile”).

Appellees’ motion to take judicial notice (Docket Entry No. 15) is denied.

AFFIRMED with instructions to amend the judgment.

3 17-17332