Timothy Rote v. Committee on Judicial Conduct and Disability of Th

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 18, 2023
• Docket: 22-35261
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 18 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TIMOTHY C. ROTE, No. 22-35261

Plaintiff-Appellant, D.C. No. 3:19-cv-01988-SI

v. MEMORANDUM* COMMITTEE ON JUDICIAL CONDUCT AND DISABILITY OF THE JUDICIAL CONFERENCE OF THE UNITED STATES; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Submitted October 10, 2023**

Before: S.R. THOMAS, McKEOWN, and HURWITZ, Circuit Judges.

Timothy C. Rote appeals pro se from the district court’s judgment

dismissing his action under 42 U.S.C. §§1983 and 1985(3), and Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),

* 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). alleging constitutional claims. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo. Colony Cove Props., LLC v. City of Carson, 640 F.3d 948, 955

(9th Cir. 2011) (dismissal under Federal Rule of Civil Procedure 12(b)(6));

Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir. 1999) (dismissal on the basis of

judicial immunity). We affirm.

The district court properly dismissed Rote’s claims under 42 U.S.C.

§ 1985(3) because Rote failed to allege facts sufficient to show that defendants

conspired to deny him equal protection of the law based on his membership in a

protected class. See Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 626 (9th

Cir. 1988) (setting forth elements of a claim under § 1985(3)); see also SeaRiver

Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir. 2002) (explaining

that a “class of one” discrimination claim requires showing a plaintiff “has been

intentionally treated differently from others similarly situated and that there is no

rational basis for the difference in treatment”).

The district court properly dismissed Rote’s First Amendment retaliation and

procedural due process claims against the state defendants because Rote failed to

allege facts sufficient to state a plausible claim and defendant Judge Steele is

entitled to absolute judicial immunity. See Hebbe v. Pliler, 627 F.3d 338, 341-42

(9th Cir. 2010) (explaining that although pro se pleadings are construed liberally,

plaintiff must present factual allegations sufficient to state a plausible claim for

2 22-35261 relief); Duvall v. County of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001)

(describing factors relevant to the determination of whether an act is judicial in

nature and subject to absolute judicial immunity); see also Capp v. County of San

Diego, 940 F.3d 1046, 1053-58 (9th Cir. 2019) (setting forth elements of a First

Amendment retaliation claim); Portman v. County of Santa Clara, 995 F.2d 898,

904 (9th Cir. 1993) (setting forth elements of a procedural due process claim).

The district court properly dismissed Rote’s claims against the federal

defendants because a Bivens remedy is not available for his claims. See Egbert v.

Boule, 142 S. Ct. 1793, 1803-04 (2022) (explaining that recognizing a cause of

action under Bivens is “a disfavored judicial activity” and that the presence of an

alternative remedial process precludes recognizing a Bivens cause of action in a

new context (citation and internal quotation marks omitted)).

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

amend his second amended complaint because Rote had already been given notice

of the pleading deficiencies and an opportunity to amend, and further amendment

would be futile. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc)

(setting forth standard of review and explaining that leave to amend need not be

given if amendment would be futile); see also Chodos v. West Publ’g Co., 292

F.3d 992, 1003 (9th Cir. 2002) (noting that a district court’s discretion is

particularly broad where it has already granted leave to amend).

3 22-35261 The district court did not abuse its discretion by denying Rote’s request to

recuse the judges of the District of Oregon because Rote failed to establish any

ground for recusal. See Liteky v. United States, 510 U.S. 540, 555 (1994)

(“[J]udicial rulings alone almost never constitute a valid basis for a bias or

partiality motion.”); United States v. Sibla, 624 F.2d 864, 869 (9th Cir. 1980)

(setting forth standard of review).

The federal defendants’ motion for judicial notice (Docket Entry No. 28) is

denied as unnecessary.

Rote’s motion for leave to file separate reply brief (Docket Entry No. 41) is

granted. The Clerk will file the reply briefs submitted on November 28, 2022.

AFFIRMED.

4 22-35261