Norman Herterich v. Mary Wiss ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 21 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORMAN BARTSCH HERTERICH, No. 21-16746
Plaintiff-Appellant, D.C. No. 3:21-cv-04078-LB
v.
MEMORANDUM*
MARY E. WISS; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Laurel D. Beeler, Magistrate Judge, Presiding**
Submitted July 12, 2022**
Before: SCHROEDER, R. NELSON, and VANDYKE, Circuit Judges.
Norman Bartsch Herterich appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging constitutional violations arising
from California state court proceedings involving his father’s estate. We have
*
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).
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Federal
Rule of Civil Procedure 12(b)(1). U.S. ex rel. Hartpence v. Kinetic Concepts, Inc.,
792 F.3d 1121, 1126 (9th Cir. 2015). We affirm.
The district court properly dismissed Herterich’s action for lack of subject
matter jurisdiction under the Rooker-Feldman doctrine because it was a “forbidden
de facto appeal” of prior state court decisions and Herterich raised claims that were
“inextricably intertwined” with those state court decisions. See Noel v. Hall, 341
F.3d 1148, 1163-65 (9th Cir. 2003) (discussing the Rooker-Feldman doctrine); see
also Cooper v. Ramos, 704 F.3d 772, 782 (9th Cir. 2012) (explaining that claims
are “inextricably intertwined” with state court decisions where federal adjudication
“would impermissibly undercut the state ruling on the same issues” (citation and
internal quotation marks omitted)).
The district court did not abuse its discretion by denying Herterich’s motion
under Federal Rule of Civil Procedure 59(e) because the correction Herterich
sought was not an error of law or fact upon which the judgment was based. See
Turner v. Burlington N. Santa Fe R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003)
(grounds upon which a Rule 59(e) motion may be granted); see also Kaufmann v.
Kijakazi, 32 F.4th 843 (9th Cir. 2022) (“Rule 59(e) provides an ‘extraordinary
remedy, to be used sparingly in the interests of finality and conservation of judicial
resources.’” (quoting Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003)).
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The district court did not abuse its discretion by dismissing Herterich’s
complaint without leave to amend because further amendment would be futile. See
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 if amendment would be futile).
All pending motions and requests are denied.
AFFIRMED.
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