Brian Weigelt v. County of Monterey ( 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NOT FOR PUBLICATION FILED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
BRIAN STACEY WEIGELT, No. 19-16892
Plaintiff-Appellant, D.C. No. 5:19-cv-02687-NC
v.
MEMORANDUM*
COUNTY OF MONTEREY; et al.,
Defendants-Appellees,
and
MONTEREY COUNTY FAMILY
COURTS,
Defendant.
Appeal from the United States District Court
for the Northern District of California
Nathanael M. Cousins, Magistrate Judge, Presiding**
Submitted September 8, 2020***
Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.
*
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).
Brian Stacey Weigelt appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging federal and state law claims arising
out of his divorce. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo a dismissal for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th
Cir. 2011). We affirm.
The district court properly dismissed Weigelt’s federal claims against
defendants City of Salinas (sued as “Salinas Police Department”), County of
Monterey, and Monterey County District Attorney’s Office because Weigelt failed
to allege facts sufficient to state a plausible claim. See Vill. of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000) (per curiam) (elements of an equal protection
“class of one” claim); Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013) (to
state an equal protection claim, plaintiff must show that the defendants acted with
an intent or purpose to discriminate against the plaintiff based upon membership in
a protected class); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.
2006) (elements of a § 1983 claim).
The district court properly dismissed Weigelt’s state law claims because
Weigelt failed to allege facts sufficient to show that he complied with, or was
excused from, the claim presentment requirement of the California Government
Claims Act. See Cal. Gov’t Code § 911.2; State v. Superior Court, 90 P.3d 116,
2 19-16892
122 (Cal. 2004) (plaintiff must allege facts demonstrating or excusing compliance
with the claim presentation requirement; otherwise, complaint is subject to general
demurrer).
The district court properly dismissed Weigelt’s claims against defendant
Superior Court of California, County of Monterey (sued as “Monterey County
Family Courts”) because these claims were barred by the Eleventh Amendment.
See Simmons v. Sacramento Cty. Superior Court, 318 F.3d 1156, 1161 (9th Cir.
2003) (state courts are “arms of the state” entitled to Eleventh Amendment
immunity); Franceschi v. Schwartz, 57 F.3d 828, 831 (9th Cir. 1995) (“The
Eleventh Amendment bars suits which seek either damages or injunctive relief
against a state, an arm of the state, its instrumentalities, or its agencies.” (citation
and internal quotation marks omitted)).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Weigelt’s request for oral argument, set forth in the opening and reply briefs,
is denied.
AFFIRMED.
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