FILED
NOT FOR PUBLICATION MAY 26 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT E. JOHNSON, No. 14-35089
Plaintiff - Appellant, D.C. No. 3:12-cv-06018-RJB
v.
MEMORANDUM*
SARA Di VITTORIO, Assistant Attorney
General; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Submitted May 13, 2015**
Before: LEAVY, CALLAHAN, and M. SMITH, Circuit Judges.
Robert E. Johnson, a Washington state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action arising out of his
prior federal and state court proceedings. We have jurisdiction under 28 U.S.C.
*
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).
§ 1291. We review de novo. Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1005
(9th Cir. 2011) (statute of limitations); Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir.
2003) (summary judgment and Rooker-Feldman). We may affirm on any basis
supported by the record. Corales v. Bennett, 567 F.3d 554, 562 (9th Cir. 2009).
We affirm.
Summary judgment on Johnson’s claims against Judges Hicks and Penoyar
was proper because these claims amount to a forbidden de facto appeal of a prior
state court judgment. See Noel, 341 F.3d at 1164 (explaining that a de facto appeal
exists when “a federal plaintiff asserts as a legal wrong an allegedly erroneous
decision by a state court, and seeks relief from a state court judgment based on that
decision”). Moreover, the district court properly granted summary judgment on
Johnson’s § 1983 claim against Assistant Attorney General Di Vittorio because it
is inextricably intertwined with the de facto appeal.
Summary judgment on Johnson’s fraud on the court claims against Assistant
Attorneys General Di Vittorio and Stanhope was proper because he failed to raise a
genuine dispute of material fact as to whether their alleged misrepresentations
constituted a fraud on the court. See Appling v. State Farm Mut. Auto. Ins. Co.,
340 F.3d 769, 780 (9th Cir. 2003) (“[f]raud on the court requires a grave
miscarriage of justice[;] “[n]on-disclosure or perjury by a party, or witness, does
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not, by itself, amount to fraud on the court”).
To the extent Johnson alleged a separate § 1983 claim against Stanhope, the
district court properly granted summary judgment because the claim was time-
barred. See Wash. Rev. Code § 4.16.080(2) (three-year statute of limitations for
personal injury actions); Knox v. Davis, 260 F.3d 1009, 1012-13 (9th Cir. 2001)
(for § 1983 claims, federal courts apply the forum state’s personal injury statute of
limitations and apply federal law to determine accrual; a § 1983 claim accrues
when the plaintiff knows or has reason to know of the injury that forms the basis of
the action).
The district court did not abuse its discretion in denying Johnson’s Fed. R.
Civ. P. 56(f) motion because Johnson failed to show that the discovery he
requested was essential to oppose summary judgment. See Getz v. Boeing Co., 654
F.3d 852, 867-68 (9th Cir. 2011) (setting forth standard of review and explaining
that a plaintiff must show that the discovery sought would have precluded
summary judgment).
The district court did not abuse its discretion when it did not issue a Fed. R.
Civ. P. 16(b) scheduling order because Johnson’s action was exempt from this
requirement under the local rules. See W.D. Wash. R. 16(b)(5) (exempting certain
cases from Fed. R. Civ. P. 16 scheduling order requirements); Bias v. Moynihan,
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508 F.3d 1212, 1223 (9th Cir. 2007) (standard of review).
We reject Johnson’s arguments regarding his cross-motion for summary
judgment, his request for judicial notice, and defendants’ alleged waiver of certain
arguments on appeal.
Defendants’ request that this Court find Johnson’s appeal frivolous and
malicious, as set forth in their answering brief, is denied.
AFFIRMED.
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