Terrence Kinsella v. Steve Cooley

Ninth Circuit

Terrence Kinsella v. Steve Cooley

369 F. App'x 867

CourtCourt of Appeals for the Ninth Circuit

DecidedMarch 8, 2010

Docket08-56941

StatusUnpublished

This text of 369 F. App'x 867 (Terrence Kinsella v. Steve Cooley) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Terrence Kinsella v. Steve Cooley, 369 F. App'x 867 (9th Cir. 2010).

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Opinion

MEMORANDUM **

We find no error in the district court’s dismissal of Kinsella’s claims against the Los Angeles District Attorney’s Office defendants. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to survive a motion to dismiss. Ashcroft v. Iqbal, — U.S. -, -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Kinsella’s complaint failed to show that the defendants were under a legal duty to file the abstract of judgment, as required to state a cognizable claim under 42 U.S.C. § 1983. See Barry v. Fowler, 902 F.2d 770, 772 (9th Cir.1990); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978).

With respect to Kinsella’s claim against the Los Angeles Sheriffs Department defendants, Kinsella failed to raise the issue of tolling under California Government Code section 945.3 before the district court. While we have discretion to review the issue in the first instance, see United States v. Carlson, 900 F.2d 1346, 1349 (9th Cir.1990) (granting the appellate court discretion to review issues of pure law for the first time on appeal), we hold that the “particular circumstances of the case [do not] overcome our presumption against hearing new arguments” here, see Dream Palace v. County of Maricopa, 384 F.3d 990, 1005 (9th Cir.2004).

AFFIRMED.

**

This disposition is not appropriate for publication and except as provided by 9th Cir. R. 36-3.

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MEMORANDUM **

We find no error in the district court’s dismissal of Kinsella’s claims against the Los Angeles District Attorney’s Office defendants. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to survive a motion to dismiss. Ashcroft v. Iqbal, — U.S. -, -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Kinsella’s complaint failed to show that the defendants were under a legal duty to file the abstract of judgment, as required to state a cognizable claim under 42 U.S.C. § 1983. See Barry v. Fowler, 902 F.2d 770, 772 (9th Cir.1990); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978).

With respect to Kinsella’s claim against the Los Angeles Sheriffs Department defendants, Kinsella failed to raise the issue of tolling under California Government Code section 945.3 before the district court. While we have discretion to review the issue in the first instance, see United States v. Carlson, 900 F.2d 1346, 1349 (9th Cir.1990) (granting the appellate court discretion to review issues of pure law for the first time on appeal), we hold that the “particular circumstances of the case [do not] overcome our presumption against hearing new arguments” here, see Dream Palace v. County of Maricopa, 384 F.3d 990, 1005 (9th Cir.2004).

AFFIRMED.

**

This disposition is not appropriate for publication and except as provided by 9th Cir. R. 36-3.

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