Andrew Donkor v. State of California , 710 F. App'x 317 ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREW KWASI DONKOR, No. 17-55705
Plaintiff-Appellant, D.C. No. 5:15-cv-01712-GW-DTB
v.
MEMORANDUM*
STATE OF CALIFORNIA; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted January 16, 2018**
Before: REINHARDT, TROTT, and HURWITZ, Circuit Judges.
Andrew Kwasi Donkor appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging constitutional claims arising from
a wage garnishment. We review de novo a district court’s dismissal for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6). Doe v. Abbott Labs.,
*
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).
571 F.3d 930, 933 (9th Cir. 2009). We affirm.
The district court properly dismissed Donkor’s Fifth Amendment claims
because defendants are not federal government actors and because defendants did
not impose any criminal punishments on Donkor. See Hudson v. United States,
522 U.S. 93, 98-99 (1997) (Double Jeopardy Clause of the Fifth Amendment
prohibits only the imposition of multiple criminal punishments for the same
offense); Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001) (“The Due
Process Clause of the Fifth Amendment and the equal protection component
thereof apply only to actions of the federal government—not to those of state or
local governments.” (citation omitted)).
The district court properly dismissed Donkor’s Fourteenth Amendment
substantive and procedural due process claims because Donkor failed to allege
facts sufficient to show that defendants’ conduct was egregious and shocks the
conscience, or that Donkor did not receive an adequate opportunity to be heard.
See Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006) (substantive due process
claim requires allegation of “egregious” official conduct that “shocks the
conscience” (citation and internal quotation marks omitted)); Raditch v. United
States, 929 F.2d 478, 480 (9th Cir. 1991) (procedural due process requires “notice
and an opportunity to respond in some manner”).
The district court properly dismissed Donkor’s Fourteenth Amendment
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equal protection claim because Donkor failed to allege facts sufficient to show that
he was intentionally treated differently from similarly situated individuals, or
discriminated against based on his membership in a protected class. See Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (setting forth elements of an equal
protection “class of one” claim); Barren v. Harrington, 152 F.3d 1193, 1194-95
(9th Cir. 1998) (setting forth elements of an equal protection claim based on
membership in a protected class).
The district court properly dismissed Donkor’s Sixth and Eighth
Amendment claims because Donkor failed to allege facts sufficient to state any
plausible claims for relief. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir.
2010) (although pro se pleadings are to be liberally construed, a plaintiff must
present factual allegations sufficient to state a plausible claim for relief); see also
Hannah v. Larche, 363 U.S. 420, 440 n.16 (1960) (the Sixth Amendment “is
specifically limited to criminal prosecutions” (citation and internal quotation marks
omitted)); Schwenk v. Hartford, 204 F.3d 1187, 1196 (9th Cir. 2000) (an Eighth
Amendment claim requires punishment which is “offensive to human dignity”
(citation omitted)).
The district court properly dismissed Donkor’s claims against the County of
Riverside and the individual defendants in their official capacities because Donkor
failed to allege facts sufficient to show any constitutional violation. See Dougherty
3 17-55705
v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (setting forth elements for
municipal liability).
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).
AFFIRMED.
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