Joe Flarity v. State of Washington ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 29 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOE PATRICK FLARITY, No. 20-35666
Plaintiff-Appellant, D.C. No. 3:20-cv-05219-RBL
v.
MEMORANDUM*
STATE OF WASHINGTON; PIERCE
COUNTY,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted January 20, 2021**
Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges.
Joe Patrick Flarity appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging federal and state law claims related
to a traffic infraction and a bridge closure by the state. 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 panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Flarity’s request for oral
argument, set forth in the opening and reply briefs, is denied.
28 U.S.C. § 1291. We review de novo. Hebbe v. Pliler, 627 F.3d 338, 341 (9th
Cir. 2010) (dismissal under Federal Rule of Civil Procedure 12(b)(6)); Noel v.
Hall, 341 F.3d 1148, 1154 (9th Cir. 2003) (dismissal under the Rooker-Feldman
doctrine). We affirm as to all defendants.
The district court properly dismissed Flarity’s claims related to his traffic
infraction for lack of subject matter jurisdiction under the Rooker-Feldman
doctrine because these claims constituted a forbidden “de facto appeal” of a prior
state court judgment. Noel, 341 F.3d at 1163-65 (discussing proper application of
the Rooker-Feldman doctrine); see also Henrichs v. Valley View Dev., 474 F.3d
609, 616 (9th Cir. 2007) (Rooker-Feldman doctrine barred plaintiff’s claim
because the relief sought “would require the district court to determine that the
state court’s decision was wrong and thus void”).
The district court properly dismissed Flarity’s claims related to the bridge
closure because Flarity failed to allege facts sufficient to state a plausible due
process or equal protection claim. See County of Sacramento v. Lewis, 523 U.S.
833, 845-48 (1998) (the touchstone of due process is protection against arbitrary
action of the government and prevents government conduct that shocks the
conscience); Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013) (“To state a
claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the
Fourteenth Amendment a plaintiff must show that the defendants acted with an
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intent or purpose to discriminate against the plaintiff based upon membership in a
protected class.” (citation and internal quotation marks omitted)); see also Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (a claim has facial plausibility when the plaintiff
pleads factual content allowing the reasonable inference that defendant is liable for
the misconduct alleged); City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (a
Monell claim cannot survive in the absence of an underlying constitutional
violation); cf. Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 276-77
(1993) (describing federal guarantee of right to travel).
The district court did not abuse its discretion by denying Flarity’s motion for
recusal of the district judge because Flarity failed to establish extrajudicial bias or
prejudice. See 28 U.S.C. § 455 (circumstances requiring recusal); Clemens v. U.S.
Dist. Court, 428 F.3d 1175, 1178 (9th Cir. 2005) (test for disqualification under
§ 455(a)); E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1294-95 (9th
Cir. 1992) (setting forth standard of review).
The district court did not abuse its discretion by denying Flarity’s motions to
disqualify counsel for Pierce County, compel initial disclosures, and stay the
proceedings because Flarity failed to demonstrate any basis for such relief. See
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (district
court has broad discretion to manage its docket).
We do not consider matters not specifically and distinctly raised and argued
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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).
In light of our disposition affirming the dismissal of Flarity’s claims as to all
defendants, the opposed motions for summary affirmance and a stay of the briefing
schedule (Docket Entry Nos. 16, 17) are denied as moot.
All remaining pending motions and requests are denied.
AFFIRMED.
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