NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL HUPP, No. 16-55128
Plaintiff-Appellant, D.C. No. 3:12-cv-00492-GPC-JLB
v.
MEMORANDUM*
COUNTY OF SAN DIEGO; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Submitted April 11, 2017**
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
Paul Hupp appeals pro se from district court’s judgment dismissing his 42
U.S.C. § 1983 action alleging federal and state law claims arising out civil
contempt of court proceedings. We have jurisdiction under 28 U.S.C. § 1291. We
affirm.
*
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).
Contrary to Hupp’s contention, the district court did not err in denying
Hupp’s motion to compel discovery from the County of San Diego and James
Patrick Romo after granting summary judgment in favor of these defendants
because the discovery Hupp sought would not have precluded summary judgment.
See Qualls By & Through Qualls v. Blue Cross of Cal., Inc., 22 F.3d 839, 844 (9th
Cir. 1994) (setting forth standard of review and finding that the district court
properly denied a motion seeking additional discovery after summary judgment
was granted because the additional discovery would not have precluded summary
judgment). Moreover, the district court did not abuse its discretion because Hupp
failed to show that the denial caused actual and substantial prejudice. See Hallett
v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (setting forth standard of review and
explaining that the denial of a motion to compel will not be disturbed absent the
clearest showing of actual and substantial prejudice).
We reject as without merit Hupp’s contention that he is entitled to discovery
prior to the district court ruling on defendants’ motion brought under Federal Rule
of Civil Procedure 12(c). See Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d
729, 738 (9th Cir. 1987) (rejecting argument that plaintiff was entitled to discovery
prior to court ruling on motion to dismiss under Federal Rule of Civil Procedure
12(b)(6)); see also Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d
2 16-55128
1047, 1054 n.4 (9th Cir. 2011) (recognizing that Rule 12(c) and Rule 12(b)(6) are
“functionally identical”).
We reject as unsupported by the record Hupp’s contentions concerning the
alleged bias and improper conduct of the district court judge.
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).
Hupp’s motion to strike William J. Kiernan’s answering brief (Docket Entry
No. 35) is denied as moot. All other pending requests, set forth in Hupp’s opening
and reply briefs, are denied.
AFFIRMED.
3 16-55128