Terrence Kinsella v. Steve Cooley

FILED
NOT FOR PUBLICATION MAR 08 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TERRENCE KINSELLA, No. 08-56941

Plaintiff - Appellant, D.C. No. 2:07-cv-04158-GHK-CT

v.
MEMORANDUM *
STEVE COOLEY, individually and as
District Attorney for Los Angeles County;
et al.,

Defendants - Appellees.

Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding

Submitted March 4, 2010**
Pasadena, California

Before: CANBY, GOULD and IKUTA, Circuit Judges.

*
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).
 We find no error in the district court’s dismissal of Kinsella’s claims against

the Los Angeles District Attorney’s Office defendants. “Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not

suffice” to survive a motion to dismiss. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

(2009). Kinsella’s complaint failed to show that the defendants were under a legal

duty to file the abstract of judgment, as required to state a cognizable claim under

42 U.S.C. § 1983. See Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990);

Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

With respect to Kinsella’s claim against the Los Angeles Sheriff’s

Department defendants, Kinsella failed to raise the issue of tolling under California

Government Code section 945.3 before the district court. While we have

discretion to review the issue in the first instance, see United States v. Carlson, 900

F.2d 1346, 1349 (9th Cir. 1990) (granting the appellate court discretion to review

issues of pure law for the first time on appeal), we hold that the “particular

circumstances of the case [do not] overcome our presumption against hearing new

arguments” here, see Dream Palace v. County of Maricopa, 384 F.3d 990, 1005

(9th Cir. 2004).

AFFIRMED.