Charles Kinney v. Clerk of California Coa, 4th ( 2017 )


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  •                            NOT FOR PUBLICATION                           FILED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. 17-55081
    
                    Plaintiff-Appellant,            D.C. No. 8:16-cv-02197-CJC-KES
    
     v.
                                                    MEMORANDUM*
    CLERK OF CALIFORNIA COURT OF
    APPEAL, FOURTH APPELLATE
    DISTRICT, Division Three, acting in an
    administrative capacity; et al.,
    
                    Defendants-Appellees.
    
                       Appeal from the United States District Court
                          for the Central District of California
                       Cormac J. Carney, 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 alleging constitutional claims arising from state court proceedings. We
    
    
    
          *
                 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.
    have jurisdiction under 28 U.S.C. § 1291. We review de novo a sua sponte
    
    dismissal for failure to state a claim. Barrett v. Belleque, 
    544 F.3d 1060
    , 1061 (9th
    
    Cir. 2008). We affirm.
    
          The district court properly dismissed Kinney’s action on the basis of judicial
    
    immunity and quasi-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); Mullis v. U.S. Bankr. Court, 
    828 F.2d 1385
    , 1390 (9th Cir. 1987) (court clerks have absolute quasi-judicial immunity
    
    from damages for civil rights violations when they perform tasks that are an
    
    integral part of the judicial process, including taking actions necessary to
    
    commence an action); see also Sparling v. Hoffman Constr. Co., 
    864 F.2d 635
    ,
    
    637-38 (9th Cir. 1988) (court may sua sponte dismiss a complaint for failure to
    
    state a claim without notice or an opportunity to respond when plaintiff cannot
    
    possibly win relief).
    
          To the extent that Kinney seeks an order directing defendants to docket his
    
    appeal, this court lacks jurisdiction to issue such an order. See Demos v. U.S. Dist.
    
    Court For E. Dist. of Wash., 
    925 F.2d 1160
    , 1161-62 (9th Cir. 1991) (order)
    
    (federal courts lack jurisdiction to issue writs of mandamus to state courts).
    
          The district court did not abuse its discretion by dismissing the complaint
    
    without leave to amend because amendment would be futile. Cervantes v.
    
    
                                              2                                      17-55081
    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).
    
          The district court did not abuse its discretion by denying Kinney’s motion to
    
    vacate or reconsider because Kinney failed to demonstrate any basis for
    
    reconsideration. See Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 
    5 F.3d 1255
    , 1262-63 (9th Cir. 1993) (setting forth standard of review and grounds
    
    for reconsideration).
    
          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).
    
          AFFIRMED.
    
    
    
    
                                            3                                   17-55081