Vester Patterson v. John Kelso , 698 F. App'x 393 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 5 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VESTER L. PATTERSON, No. 16-16489
Plaintiff-Appellant, D.C. No. 2:16-cv-00719-AC
v.
MEMORANDUM*
JOHN CLARK KELSO,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Allison Claire, Magistrate Judge, Presiding**
Submitted September 26, 2017***
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Vester L. Patterson, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his action alleging a negligence claim against
the receiver of the California prison medical system. We have jurisdiction under
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
28 U.S.C. § 1291. We review de novo a dismissal for lack of subject matter
jurisdiction under Fed. R. Civ. P. 12(b)(1) and for failure to state a claim under
Fed. R. Civ. P. 12(b)(6). Serra v. Lappin, 600 F.3d 1191, 1195 (9th Cir. 2010).
We affirm.
The district court properly dismissed Patterson’s action because Patterson
failed to allege facts sufficient to state a negligence claim. See Hebbe v. Pliler,
627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are to be
construed liberally, a plaintiff must present factual allegations sufficient to state a
plausible claim for relief); Ladd v. County of San Mateo, 911 P.2d 496, 498 (Cal.
1996) (elements of a general negligence claim under California law).
The district court did not abuse its discretion by denying leave to amend
because amendment would be 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”). Specifically, Patterson failed to exhaust
administrative remedies under the Federal Tort Claims Act (“FTCA”) and Kelso is
entitled to quasi-judicial immunity. See 28 U.S.C. § 2675(a) (setting forth FTCA’s
administrative exhaustion requirement); McNeil v. United States, 508 U.S. 106,
113 (1993) (the FTCA bars a claimant from bringing suit in federal court unless
the claimant has first exhausted administrative remedies); Stump v. Sparkman, 435
2 16-16489
U.S. 349, 355-56 (1978) (explaining doctrine of judicial immunity); Mosher v.
Saalfeld, 589 F.2d 438, 442 (9th Cir. 1978) (judicial immunity extends to court-
appointed receivers).
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).
Appellee’s request for judicial notice (Docket Entry No. 18) is denied as
unnecessary.
AFFIRMED.
3 16-16489