Charles Kinney v. Philip Gutierrez ( 2017 )

  •                            NOT FOR PUBLICATION                           FILED
                        UNITED STATES COURT OF APPEALS                       DEC 28 2017
                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT
    CHARLES G. KINNEY,                              No. 16-56750
                    Plaintiff-Appellant,            D.C. No. 2:16-cv-07440-DMG
                       Appeal from the United States District Court
                          for the Central District of California
                         Dolly M. Gee, District Judge, Presiding
                              Submitted December 18, 2017**
    Before:      WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
          Charles G. Kinney appeals pro se from the district court’s order dismissing
    his action seeking a declaratory judgment. We have jurisdiction under 28 U.S.C.
    § 1291. We review de novo the district court’s dismissal on the basis of judicial
    immunity. Romano v. Bible, 
    169 F.3d 1182
    , 1186 (9th Cir. 1999). We affirm.
                 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). Kinney’s request for oral
    argument, set forth in the opening brief, is denied.
          The district court properly dismissed Kinney’s claims against Judge
    Gutierrez on the basis of judicial immunity. See Duvall v. County of Kitsap, 
    260 F.3d 1124
    , 1133 (9th Cir. 2001) (describing factors relevant to whether an act is
    judicial in nature and subject to judicial immunity). Contrary to Kinney’s
    contention, Judge Gutierrez was not acting in a ministerial or administrative
    capacity when he issued the remand orders.
          The district court did not abuse its discretion by dismissing the complaint
    without leave to amend because amendment would be futile. Cervantes v.
    Countrywide Home Loans, Inc., 
    656 F.3d 1034
    , 1041 (9th Cir. 2011) (setting forth
    standard of review and explaining that dismissal without leave to amend is proper
    when amendment would be futile).
          We reject as unsupported by the record Kinney’s contention that the district
    judge was biased.
          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).
                                             2                                      16-56750