NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 1 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT M. RUBINO; et al., No. 16-15708
Plaintiff-Appellant, D.C. No. 5:14-cv-05553-EJD
v.
MEMORANDUM *
WILLIAM Q. HAYES, District Judge for
the Southern District of California; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Submitted February 14, 2017**
Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.
California state prisoner Robert M. Rubino appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging federal and state
law claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the
district court’s grant of judgment on the pleadings. Cafasso, U.S. ex rel. v. Gen.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Dynamics C4 Sys., Inc., 637 F.3d 1047, 1053 (9th Cir. 2011). We affirm.
The district court properly granted judgment on the pleadings on the basis
that Rubino’s action is Heck-barred because success on Rubino’s claims would
necessarily imply the invalidity of his conviction. See Whitaker v. Garcetti, 486
F.3d 572, 583-84 (9th Cir. 2007) (irrespective of the relief sought, Heck bars
§ 1983 claims that would necessarily imply the invalidity of a conviction, unless
the plaintiff can show that the conviction has been invalidated).
The district court did not abuse its discretion in denying joinder of Doe
plaintiffs to Rubino’s action because Rubino failed to establish that plaintiffs meet
the requirements of permissive joinder. See Fed. R. Civ. P. 20(a)(1) (plaintiffs
may be joined in an action if they “assert any right to relief . . . arising out of the
same transaction, occurrence, or series of transactions or occurrences” and a
“question of law or fact common to all plaintiffs will arise in the action”); see also
Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997) (explaining the
requirements for permissive joinder).
The district court did not abuse its discretion in denying Rubino’s motion for
class certification because Rubino was not an adequate class representative. See
Fed. R. Civ. P. 23(a)(4) (requiring that class representative be able to “fairly and
adequately protect the interests of the class”); C.E. Pope Equity Trust v. United
2 16-15708
States, 818 F.2d 696, 697 (9th Cir. 1987) (lay person lacks authority to appear as
an attorney for others).
We lack jurisdiction to consider the district court’s post-judgment order
revoking Rubino’s in forma pauperis status on appeal because Rubino failed to file
an amended or separate notice of appeal. See Fed. R. App. P. 4(a)(1)(A) (notice of
appeal must be filed within 30 days after entry of the order appealed from); see
also Whitaker, 486 F.3d at 585 (appellant generally must file a separate notice of
appeal or amend a previously filed notice of appeal to secure review of a post-
judgment order).
We reject as without merit Rubino’s contention that the denial of habeas
relief denied him and Doe plaintiffs access to the courts.
We do not consider documents not presented to the district court. See
United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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