Tanya Nemcik v. Jill Fannin

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 9 2020 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TANYA LYNN NEMCIK, No. 19-15429 Plaintiff-Appellant, D.C. No. 4:18-cv-05120-JST

v.

MEMORANDUM*

JILL C. FANNIN, Official & Individual Capacities; et al.,

Defendants-Appellees.

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

Submitted March 3, 2020** Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.

Tanya Lynn Nemcik appeals pro se from the district court’s judgment dismissing her action alleging federal claims in connection with her California state-court child custody proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Federal Rule of Civil Procedure

*

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)(6). Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th Cir. 2011). We affirm.

The district court properly dismissed Nemcik’s action because Nemcik failed to allege facts sufficient to state a plausible claim. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (discussing judicial immunity and its limited exceptions); Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are liberally construed, a plaintiff must allege facts sufficient to state a plausible claim).

The district court did not abuse its discretion in denying leave to amend because amendment would have been futile. See Cervantes, 656 F.3d at 1041 (setting forth standard of review and explaining that dismissal without leave to amend is proper when amendment would be futile).

The district court did not abuse its discretion by ruling on the motion to dismiss without oral argument. See Morrow v. Topping, 437 F.2d 1155, 1156-57 (9th Cir. 1971) (setting forth standard of review; district court’s failure to hold oral argument on a motion to dismiss was not an abuse of discretion or a denial of due process).

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).

We do not consider documents and facts not presented to the district court.

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See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).

AFFIRMED.

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