Sergei Portnoy v. State of California ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGEI PORTNOY, No. 19-16844
Plaintiff-Appellant, D.C. No. 2:19-cv-01504-TLN-CKD
v.
MEMORANDUM*
STATE OF CALIFORNIA,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted September 8, 2020**
Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.
Sergei Portnoy appeals pro se from the district court’s judgment dismissing
his 42 U.S.C. § 1983 action alleging constitutional claims. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Watison v. Carter, 668 F.3d 1108,
1112 (9th Cir. 2012) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to
*
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).
state a claim); Micomonaco v. Washington, 45 F.3d 316, 319 (9th Cir. 1995)
(dismissal as barred by Eleventh Amendment immunity). We affirm.
The district court properly dismissed Portnoy’s action against the State of
California as barred by the Eleventh Amendment. See Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (the Eleventh Amendment bars suit
against a non-consenting state).
The district court did not abuse its discretion by dismissing Portnoy’s action
without leave to amend because amendment would have been 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 when amendment would be futile).
AFFIRMED.
2 19-16844