FILED
NOT FOR PUBLICATION DEC 09 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KASEY GRAHAM, No. 12-56030
Plaintiff - Appellant, D.C. No. 2:10-cv-04618-RGK-E
v.
MEMORANDUM*
OROZCO, individual and official capacity,
Los Angeles Police Officer #36578 (Badge
No.); et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted November 19, 2013**
Before: CANBY, TROTT, and THOMAS, Circuit Judges.
Federal prisoner Kasey Graham appeals pro se from the district court’s
judgment on the pleadings in his action brought under 42 U.S.C. § 1983 and Bivens
v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(1971), alleging that defendants falsified police reports and search warrant
affidavits and presented false testimony to a grand jury. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. MacDonald v. Grace Church
Seattle, 457 F.3d 1079, 1081 (9th Cir. 2006). We may affirm on any ground
supported by the record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116,
1121 (9th Cir. 2008). We affirm.
The district court properly granted judgment on the pleadings on Graham’s
claim that defendant Sonnendecker presented false testimony to a grand jury
because Sonnendecker is immune from civil liability for his testimony. See
Briscoe v. LaHue, 460 U.S. 325, 342-43 (1983) (police officers who testify in
judicial proceedings are absolutely immune from civil liability).
Judgment on the pleadings was proper on Graham’s claims that defendants
Washington, Aluotto, and Mendoza falsified police reports and search warrant
affidavits because those issues were actually litigated in Graham’s suppression
hearing in his criminal action as a critical and necessary part of the judgment in
that action. See McQuillion v. Schwarzenegger, 369 F.3d 1091, 1096 (9th Cir.
2004) (setting forth requirements for collateral estoppel to apply under federal
law); see also Ayers v. City of Richmond, 895 F.2d 1267, 1272 (9th Cir. 1990)
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(defendant’s failure to appeal adverse rulings in a suppression hearing following a
guilty plea resulted in a final judgment for purposes of collateral estoppel).
Judgment on the pleadings was proper on Graham’s claim against defendant
Orozco because Graham failed to allege facts showing that Orozco was liable for
any misconduct alleged. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (plaintiff
must allege facts that “allow[] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged”).
Judgment on the pleadings was proper on Graham’s conspiracy claim
because Graham failed to allege facts showing that defendants agreed to or actually
deprived him of any constitutional right. See Avalos v. Baca, 596 F.3d 583, 592
(9th Cir. 2010) (setting forth requirements for a conspiracy claim under § 1983).
The district court did not abuse its discretion in denying Graham’s motions
for default and default judgment because defendants timely pleaded and defended
against the suit. See Fed. R. Civ. P. 55(a), (b); Eitel v. McCool, 782 F.2d 1470,
1471-72 (9th Cir. 1986) (setting forth standard of review and factors the court may
consider in deciding whether to enter default judgment).
The district court did not abuse its discretion in denying Graham’s request
for appointment of counsel because Graham failed to demonstrate exceptional
circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting
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forth standard of review and explaining the “exceptional circumstances”
requirement).
AFFIRMED.
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