Richard Caldarone v. Neil Abercrombie

FILED
NOT FOR PUBLICATION MAR 03 2016

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

FOR THE NINTH CIRCUIT

RICHARD W. CALDARONE, No. 15-16190

Plaintiff - Appellant, D.C. No. 1:14-cv-00523-LEK-
BMK
v.

NEIL ABERCROMBIE; et al., MEMORANDUM*

Defendants - Appellees.

Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding

Submitted February 24, 2016**

Before: LEAVY, FERNANDEZ, and RAWLINSON, Circuit Judges.

Richard W. Caldarone appeals pro se from the district court’s judgment

dismissing his action alleging federal and state law claims arising out of a prior

state foreclosure proceeding involving his property. We have jurisdiction under 28

U.S.C. § 1291. We review de novo. Doe v. Abbott Labs., 571 F.3d 930, 933 (9th

*
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).
Cir. 2009) (dismissal under Fed. R. Civ. P. 12(b)(6)); Crum v. Circus Circus

Enters., 231 F.3d 1129, 1130 (9th Cir. 2000) (dismissal for lack of subject matter

jurisdiction). We affirm.

The district court properly dismissed Caldarone’s claims against defendants

Abercrombie, Lopez, and Louie because they were entitled to Eleventh

Amendment immunity. See Flint v. Dennison, 488 F.3d 816, 824-25 (9th Cir.

2007) (Eleventh Amendment bars damages actions against state officials in their

official capacity).

The district court properly dismissed Caldarone’s claims against defendant

Ibarra because he was entitled to judicial immunity. See Ashelman v. Pope, 793

F.2d 1072, 1075 (9th Cir. 1986) (en banc) (“Judges and those performing

judge-like functions are absolutely immune from damage liability for acts

performed in their official capacities.”).

The district court properly dismissed Caldarone’s claims against defendants

Clay and Chapman because Caldarone failed to establish federal subject matter

jurisdiction over his claims against them. See 28 U.S.C. §§ 1331, 1332(a)(1);

Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1086-87

(9th Cir. 2009) (discussing requirements for federal question jurisdiction under

§ 1331); In re Digimarc Corp. Derivative Litig., 549 F.3d 1223, 1234 (9th Cir.

2 15-16190
2008) (“Diversity jurisdiction requires complete diversity between the

parties—each defendant must be a citizen of a different state from each plaintiff.”);

see also Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)

(party asserting jurisdiction bears the burden of proving federal jurisdiction).

The district court did not abuse its discretion by denying Caldarone’s motion

for leave to amend because amendment would have been futile. See Chappel v.

Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000) (setting forth standard of

review and explaining that a district court may deny leave to amend where

amendment would be futile).

The district court did not abuse its discretion by denying Caldarone’s

motions for recusal because no facts support a conclusion that Judge Kobayashi’s

impartiality may reasonably be questioned. See United States v. Johnson, 610 F.3d

1138, 1147-48 (9th Cir. 2010) (setting forth standard of review and discussing

grounds for recusal).

We do not consider issues or arguments not specifically and distinctly raised

and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th

Cir. 2009).

Caldarone’s motion to strike, for a jury trial, and for sanctions, filed on

3 15-16190
December 7, 2015, is denied.

AFFIRMED.

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