In Re: Silverio Arenas, Jr. v. Jay Inslee ( 2023 )

FILED
NOT FOR PUBLICATION
MAY 15 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: SILVERIO ARENAS, Jr., No. 21-60062
Debtor, BAP No. 21-1056
------------------------------
MEMORANDUM*
SILVERIO ARENAS, Jr.,
Appellant,
v.
JAY INSLEE, Governor; ROBERT W.
FERGUSON, Attorney General; JOEL
SACKS, Director of L & I; VICTOR
VELAZQUEZ, L & I Case Manager;
MAGGIE LELAND, L & I Legislative
Liaison; TONYA MORGAN, L & I
Auditor; GARY FRANKLIN, Doctor, L &
I Medical Director; LEE GLASS, Doctor,
L & I Associate Medical Dirctor;
STEPHEN THIELKE, Doctor, L & I
Medical Consultant; ERNIE LAPALM, L
& I Deputy Director; MONTANA
SALVONI, L & I Civil Rights
Investigator; DAN JOHNSTON, L & I
Civil Rights Investigator; ANGELA
EMTER JIMENEZ, L & I Medical
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Program Specialist; VICTORIA
KENNEDY, L & I Assistance Director;
URIEL INIGUEZ, L & I Director of
Community Relations; CLAUDIA
WATSON, L & I Case Manager;
GREGORY G. SILVEY, AAG; SHELLY
MORTINSON, AAG; LISA GILMAN,
AGO Investigator; LISA VAN DER
LUGT, Director of Governor’s
Commission on Hispanic Affairs; JEAN
DE ROCHERS, L & I RN,
Appellees.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Brand, Gan, and Taylor, Bankruptcy Judges, Presiding
Submitted May 11, 2023**
San Francisco, California
Before: FERNANDEZ, SILVERMAN, and N.R. SMITH, Circuit Judges.
Silverio Arenas, Jr. appeals pro se from the judgment of the Bankruptcy
Appellate Panel (BAP) affirming the bankruptcy court’s judgment in favor of
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
2
Defendants1 in his action for civil rights violations, discrimination, and related
claims under federal and Washington law. We review de novo,2 and we affirm.
First, we reject Arenas’s challenge to the bankruptcy court’s jurisdiction.
Arenas knowingly and voluntarily consented to pursuing his claims in the
bankruptcy court because he expressly agreed to do so after he “‘was made aware
of the need for consent and the right to refuse it.’” Wellness Int’l Network, Ltd. v.
Sharif, 575 U.S. 665, 685, 135 S. Ct. 1932, 1948, 191 L. Ed. 2d 911 (2015); see
also 28 U.S.C. § 157(c)(2).
Second, we affirm the dismissal with prejudice of Arenas’s claims premised
on federal criminal law. See Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir.
1980) (per curiam); see also Fed. R. Civ. P. 12(c). The bankruptcy court and BAP
correctly concluded that the criminal statutes Arenas relied upon “provide no basis
for civil liability.” Aldabe, 616 F.2d at 1092; see also Allen v. Gold Country
Casino, 464 F.3d 1044, 1048 (9th Cir. 2006); Opera Plaza Residential Parcel
1
“Defendants” refers to Jay Inslee, Robert Ferguson, Joel Sacks, Victor
Velazquez, Maggie Leland, Tonya Morgan, Gary Franklin, Lee Glass, Stephen
Thielke, Ernie LaPalm, Montana Salvoni, Dan Johnston, Angela Jimenez, Victoria
Kennedy, Uriel Iniguez, Claudia Watson, Gregory Silvey, Shelly Mortinson, Lisa
Gilman, Lisa van der Lugt, and Jean de Rochers.
2
See Cafasso ex rel. United States v. Gen. Dynamics C4 Sys., Inc., 637 F.3d
1047, 1053 (9th Cir. 2011); Retz v. Samson (In re Retz), 606 F.3d 1189, 1196 (9th
Cir. 2010); Ghomeshi v. Sabban (In re Sabban), 600 F.3d 1219, 1221–22 (9th Cir.
2010).
3
Homeowners Ass’n v. Hoang, 376 F.3d 831, 834–38 (9th Cir. 2004). Dismissal
with prejudice was appropriate because those claims could not be saved by any
amendment. See Gregg v. Haw. Dep’t of Pub. Safety, 870 F.3d 883, 887 (9th Cir.
2017).
Third, we conclude that the bankruptcy court properly entered summary
judgment on Arenas’s remaining array of claims.3 The record supports the
bankruptcy court’s conclusion that no genuine issues of material fact remained for
trial on any of those claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24,
106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986); see also Fed. R. Civ. P. 56(a). The
Defendants’ motion for summary judgment was adequately supported with
evidence as to each claim, and Arenas failed to come forward with any evidence4
in the bankruptcy court to contradict that showing. See Celotex Corp., 477 U.S. at
324, 106 S. Ct. at 2553; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49,
106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). Moreover, the bankruptcy court
3
Both the bankruptcy court and the BAP discussed how certain of those
claims could also be dismissed with prejudice. Because we may affirm on any
ground supported by the record, we do not opine on that alternative rationale. See
City & County of San Francisco v. Barr, 965 F.3d 753, 761 (9th Cir. 2020).
4
Cf. Keenan v. Hall, 83 F.3d 1083, 1090 n.1 (9th Cir. 1996), amended by
135 F.3d 1318 (9th Cir. 1998).
4
properly refrained from making credibility determinations at summary judgment.
See Anderson, 477 U.S. at 255, 106 S. Ct. at 2513.
Finally, even assuming (without deciding) that the bankruptcy court judge
was somewhat curt or impatient with Arenas, that does not amount to
impermissible bias or partiality. See Liteky v. United States, 510 U.S. 540, 555–56,
114 S. Ct. 1147, 1157–58, 127 L. Ed. 2d 474 (1994).
We do not consider arguments raised for the first time on appeal or matters
not specifically and distinctly raised and argued in the opening brief. See Padgett
v. Wright, 587 F.3d 983, 985, 985 n.2 (9th Cir. 2009) (per curiam); see also
Hornish v. King County, 899 F.3d 680, 702–03 (9th Cir. 2018).
AFFIRMED.
5