C. Dillard v. State of Oregon , 658 F. App'x 353 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 7 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
C. GORDON DILLARD, No. 14-35488
Plaintiff-Appellant, D.C. No. 1:13-cv-00373-CL
v.
MEMORANDUM*
STATE OF OREGON; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Submitted October 25, 2016**
Before: LEAVY, GRABER, and CHRISTEN, Circuit Judges.
C. Gordon Dillard appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging federal and state law violations in
connection with the prosecution of a charge against him for encouraging child
sexual abuse. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
*
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).
dismissal for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6), and we may affirm on an basis supported by the record. Thompson v.
Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm.
The district court properly dismissed Dillard’s search and seizure claim
because Dillard failed to allege facts sufficient to state a plausible claim. See
Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (though pro se pleadings are
liberally construed, plaintiff must allege sufficient facts to state a plausible claim);
Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004) (a party’s
conclusory allegations, unwarranted deductions of fact, or unreasonable inferences
need not be accepted as true).
Dismissal of Dillard’s malicious prosecution claim was proper because
Dillard failed to allege facts sufficient to show that the defendants lacked probable
cause at the time of his prosecution and conviction. See Teegarden v. State ex rel.
Oregon Youth Auth., 348 P.3d 273, 280 (Or. 2015) (elements of malicious
prosecution claim); Blandino v. Fischel, 39 P.3d 258, 261 (Or. 2002) (“In the
context of a malicious prosecution claim, ‘probable cause’ refers to the subjective
and objectively reasonable belief that the defendant committed a crime.”).
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Because Dillard failed to state an underlying constitutional violation,
dismissal of Dillard’s Monell claims against defendants Josephine County and City
of Grant’s Pass, and his official capacity claims against defendants Campbell,
Sanchez, Henner, Brissette, and Gaunt, was proper. See Simmons v. Navajo Cty.,
Ariz., 609 F.3d 1011, 1021 (9th Cir. 2010) (“Because we hold that there was no
underlying constitutional violation, the [plaintiffs] cannot maintain a claim for
municipal liability.”).
The district court did not abuse its discretion in denying Dillard leave to
amend because amendment would have been futile. See Cervantes v. Countrywide
Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (stating standard of review
and explaining that district court may dismiss without leave to amend where
amendment would be futile).
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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