William Masters v. Xavier Becerra ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM A. MASTERS, No. 19-55757
Plaintiff-Appellant, D.C. No. 2:19-cv-02030-MWF-
AGR
v.
XAVIER BECERRA, in his official capacity MEMORANDUM*
as the Attorney General of the State of
California,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted March 16, 2021**
Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.
William A. Masters appeals pro se from the district court’s judgment
dismissing his action alleging constitutional claims related to California Welfare
and Institutions Code § 8100(b) and § 8102(a). We have jurisdiction under 28
*
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).
U.S.C. § 1291. We review de novo a dismissal under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). Conservation Force v. Salazar, 646 F.3d 1240,
1241 (9th Cir. 2011). We may affirm on any basis supported by the record.
Yagman v. Garcetti, 852 F.3d 859, 863 (9th Cir. 2017). We affirm.
Dismissal of Masters’s Second Amendment challenge was proper because
Masters failed to allege facts sufficient to state a plausible claim. See United States
v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013) (setting forth two-step Second
Amendment inquiry to determine appropriate level of scrutiny for challenged law);
see also Silvester v. Harris, 843 F.3d 816, 823 (9th Cir. 2016) (noting “near
unanimity” that intermediate scrutiny is appropriate when considering regulations
that fall within the scope of the Second Amendment). Even if strict scrutiny
applies, Masters failed to allege facts sufficient to show that the statute is not
narrowly drawn to serve a compelling state interest. See Green v. City of Tucson,
340 F.3d 891, 896 (9th Cir. 2003) (explaining strict scrutiny); cf. Dist. of Columbia
v. Heller, 554 U.S. 570, 626-27, 627 n.1 (2008) (explaining that the right secured
by the Second Amendment is not unlimited; setting forth nonexhaustive list of
presumptively lawful regulatory measures).
Dismissal of Masters’s facial and as-applied procedural due process
challenges was proper because Masters failed to allege facts sufficient to state a
plausible claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 681 (2009) (to avoid
2 19-55757
dismissal, “a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face” and conclusory allegations are
not entitled to be assumed true (citation and internal quotation marks omitted));
Zinermon v. Burch, 494 U.S. 113, 125-28 (1990) (setting forth factors from
Mathews v. Eldridge, 424 U.S. 319, 335 (1976), to determine what procedural due
process protections are required in a particular case; circumstances in which a
statutory provision for a postdeprivation hearing satisfies due process include
necessity of quick action or impracticality of providing predeprivation process);
see also Cal. Welf. & Inst. Code § 8100(b)(3) (setting forth procedure available to
a person subject to firearm prohibition under § 8100(b)(1) to petition the superior
court for an order that he or she may own, possess, have custody or control over,
receive, or purchase firearms).
We do not consider 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.
3 19-55757