Christopher Schneider v. Amador County

FILED
NOT FOR PUBLICATION OCT 29 2015

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

FOR THE NINTH CIRCUIT

CHRISTOPHER D. SCHNEIDER, No. 13-16387

Plaintiff - Appellant, D.C. No. 2:10-cv-03242-TLN-
EFB
v.

AMADOR COUNTY; et al., MEMORANDUM*

Defendants - Appellees.

Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding

Submitted October 14, 2015**

Before: SILVERMAN, BERZON, and WATFORD, Circuit Judges.

Christopher D. Schneider appeals pro se from the district court’s judgment

dismissing his 42 U.S.C. § 1983 action alleging federal and state law claims

relating to defendants’ enforcement of their outside storage ordinances. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Guatay Christian

*
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).
Fellowship v. County of San Diego, 670 F.3d 957, 970 (9th Cir. 2011) (ripeness);

N. Cty. Cmty. Alliance, Inc. v. Salazar, 573 F.3d 738, 741 (9th Cir. 2009)

(dismissal under Fed. R. Civ. P. 12(b)(6)); Planned Parenthood of S. Ariz. v.

Lawall, 307 F.3d 783, 786 (9th Cir. 2002) (constitutionality of a statute). We

affirm.

The district court properly dismissed Schneider’s equal protection and

procedural due process claims as unripe because they are not yet fit for judicial

review and the hardship to Schneider is relatively minor. See Alaska Right to Life

Political Action Comm. v. Feldman, 504 F.3d 840, 849 (9th Cir. 2007) (elements of

prudential ripeness).

The district court properly dismissed Schneider’s First Amendment

retaliation claim as barred by the statue of limitations because Schneider filed his

action more than two years after his claims accrued and Schneider did not show

any basis for equitable estoppel. See Cal. Civ. Proc. Code § 335.1 (two-year

statute of limitations for personal injury actions); Knox v. Davis, 260 F.3d 1009,

1012-13 (9th Cir. 2001) (federal courts apply the forum state’s personal injury

statute of limitations for § 1983 claims, and a § 1983 claim accrues when the

plaintiff knows or has reason to know of the injury that forms the basis of the

action); Honeywell v. Workers’ Comp. Appeals Bd., 105 P.3d 544, 550 (Cal. 2005)

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(California standard for equitable estoppel).

The district court properly dismissed Schneider’s other First Amendment

claims because Schneider failed to allege facts sufficient to show that the

ordinances were unconstitutional as applied to him, impermissible restrictions on

expressive conduct, or unconstitutionally vague or overbroad. See Members of

City Council v. Taxpayers for Vincent, 466 U.S. 789, 805 (1984) (framework for

evaluating as-applied First Amendment challenge to ordinance); Foti v. City of

Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998) (elements of facial challenge to an

ordinance).

The district court properly dismissed Schneider’s dormant Commerce

Clause claim because Schneider failed to allege facts sufficient to show that the

ordinances had a significant impact on interstate commerce. See Nat’l Ass’n of

Optometrists & Opticians v. Harris, 682 F.3d 1144, 1155 (9th Cir. 2012) (plaintiff

must first show that the statute imposes a significant burden on interstate

commerce to establish a dormant Commerce Clause claim).

The district court properly dismissed Schneider’s state law claims because

Schneider failed to allege facts sufficient to show that he properly exhausted his

claims. See Cal. Gov’t Code § 945.4 (plaintiff may not sue a public entity for

“money or damages” until he has presented the claim to that entity); Cal. Gov’t

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Code § 911.2(a) (“A claim relating to a cause of action for . . . injury to person . . .

shall be presented . . . not later than six months after the accrual of the cause of

action.”).

The district court did not abuse its discretion in denying Schneider leave to

amend because amendment would have been futile. See Cervantes v. Countrywide

Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of

review and explaining that district court may dismiss without leave to amend

where amendment would be futile).

Schneider’s challenges relating to the denial of a temporary restraining order

or a preliminary injunction are moot. See Mt. Graham Red Squirrel v. Madigan,

954 F.2d 1441, 1450 (9th Cir.1992) (when underlying claims have been decided,

the reversal of a denial of preliminary injunction would have no practical

consequences, and the issue is therefore moot).

We reject Schneider’s contention that the district court did not adequately

notify him of his complaint’s deficiencies or how to fix those deficiencies.

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments raised for the first time on appeal. See Padgett

v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

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Schneider’s motion for judicial notice, filed on February 10, 2014, is denied.

AFFIRMED.

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