Robert McCarty v. John Roos , 689 F. App'x 576 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 24 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT JOSEPH McCARTY, No. 14-16934
Plaintiff-Appellant, D.C. No. 2:11-cv-01538-JCM-NJK
v.
MEMORANDUM*
JOHN V. ROOS; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted April 11, 2017**
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
Robert Joseph McCarty appeals pro se from the district court’s judgment in
his 42 U.S.C. § 1983 action alleging constitutional violations arising out of his
registration as a sex offender. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo both the district court’s dismissal for failure to state a claim 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).
Federal Rule of Civil Procedure 12(b)(6) and summary judgment. Doe v. Abbott
Labs., 571 F.3d 930, 933 (9th Cir. 2009). We affirm.
The district court properly dismissed McCarty’s official capacity claims
against the federal defendants because McCarty failed to allege facts sufficient to
state a plausible claim. See United States v. Juvenile Male, 670 F.3d 999, 1009,
1012-13 (9th Cir. 2012) (identifying requirements for equal protection, substantive
due process, and procedural due process claims); Hebbe v. Pliler, 627 F.3d 338,
341-42 (9th Cir. 2010) (although pro se pleadings are to be liberally construed, a
plaintiff must still present factual allegations sufficient to state a plausible claim
for relief).
The district court properly dismissed McCarty’s official capacity claims
against the state defendants on the basis of Eleventh Amendment immunity. See
Krainski v. Nev. ex. rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d 963,
967 (9th Cir. 2010) (the Eleventh Amendment bars suits against the State, its
agencies, and state officials sued in their official capacities).
The district court properly dismissed McCarty’s individual capacity claims
against the federal and state defendants because McCarty failed to allege facts
sufficient to show that defendants’ conduct violated a clearly established right.
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See Pearson v. Callahan, 555 U.S. 223, 232 (2009) (defendant is entitled to
qualified immunity unless the conduct at issue violated a clearly established
constitutional right).
The district court properly granted summary judgment on McCarty’s official
capacity claims for injunctive relief against defendants Charlene Hoerth and
Patrick Saunders because McCarty failed to raise a genuine dispute of material fact
as to whether he was not required to register as a sex offender. See United States v.
Crowder, 656 F.3d 870, 872 (9th Cir. 2011) (explaining Sex Offender Registration
and Notification Act registration requirements); Nollette v. State, 46 P.3d 87, 90
(Nev. 2002) (explaining registration requirements under Nevada law).
The district court did not abuse its discretion in denying McCarty’s request
for judicial notice, including his request to take judicial notice of the Torture
Victims Protection Act, Foreign Sovereign Immunities Act, and Convention
Against Torture. See Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1016
n.9 (9th Cir. 2012) (setting forth standard of review); Ruiz v. City of Santa
Maria, 160 F.3d 543, 548 n.13 (9th Cir. 1998) (judicial notice is inappropriate
where the facts to be noticed are not relevant to the disposition of the issues before
the court).
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We reject as unsupported by the record McCarty’s contentions that the
district was not impartial, applied the wrong legal standard, and failed to receive
and consider evidence.
McCarty’s request for judicial notice, set forth in his reply brief, is denied.
AFFIRMED.
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