NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARISTEA HUPP; PAUL HUPP, No. 16-56245
Plaintiffs-Appellants, D.C. No. 5:16-cv-00370-VAP-SP
v.
MEMORANDUM*
SOLERA OAK VALLEY GREENS
ASSOCIATION; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief Judge, Presiding
Submitted December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
Aristea Hupp and Paul Hupp appeal pro se from the district court’s judgment
dismissing their action alleging federal and state law claims arising from the state
court’s issuance and application of a vexatious litigant order against Paul Hupp.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Dexter v.
*
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).
Colvin, 731 F.3d 977, 980 (9th Cir. 2013). We affirm.
The district court properly dismissed the Hupps’ 42 U.S.C. § 1983 claims
against the private actor defendants because the Hupps failed to allege facts
sufficient to show that these defendants acted under color of state law. See Price v.
Hawaii, 939 F.2d 702, 707-09 (9th Cir. 1991) (noting that private parties generally
do not act under the color of state law and describing instances in which a private
actor’s conduct amounts to state action for purposes of § 1983).
The district court properly dismissed the Hupps’ 42 U.S.C. § 1983 claims
against defendant Huntsman arising from Huntsman’s conduct during the Hupps’
prior state court action because the Hupps failed to allege sufficient facts to show a
constitutional violation occurred. See Lopez v. Dep’t of Health Servs., 939 F.2d
881, 883 (9th Cir. 1991) (setting forth elements of a § 1983 claim).
To the extent that the Hupps seek damages against defendant Judge Molloy
for his alleged unconstitutional conduct, the district court properly concluded that
Judge Molloy is immune from a suit for damages. See Ashelman v. Pope, 793 F.2d
1072, 1075 (9th Cir. 1986) (judges are absolutely immune from damage liability
for acts performed in their official capacity).
The district court properly dismissed the Hupps’ claims for injunctive relief
against defendant Judges Molloy, Riemer, and Webster because the Hupps failed
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to allege that “a declaratory decree was violated or declaratory relief was
unavailable.” 42 U.S.C. § 1983.
The district court properly dismissed the Hupps’ claims for declaratory relief
against Judges Molloy, Riemer, and Webster as barred by the Eleventh
Amendment. See Green v. Mansour, 474 U.S. 64, 67-69 (1985) (distinguishing
claims for prospective and retrospective relief and explaining that claims for
retrospective relief are barred by the Eleventh Amendment).
The district court properly dismissed the Hupps’ claim challenging the
constitutionality of California’s vexatious litigant statute as barred by the Rooker-
Feldman doctrine because this claim is “inextricably intertwined” with the state
court’s vexatious litigant order entered against Paul Hupp. See Doe & Assocs. Law
Offices v. Napolitano, 252 F.3d 1026, 1029-30 (9th Cir. 2001) (a constitutional
challenge is barred under the Rooker-Feldman doctrine if it is inextricably
intertwined with a state court judgment and the district court could not rule in favor
of the plaintiff “without holding that the state court had erred”).
The district court did not abuse its discretion in denying the Hupps’ motion
seeking disqualification of the district judge and magistrate judge because the
Hupps failed to establish any grounds for such relief. See United States v.
Johnson, 610 F.3d 1138, 1147 (9th Cir. 2010) (setting forth standard of review and
grounds for recusal).
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We lack jurisdiction to consider the district court’s order declaring the
Hupps to be vexatious litigants because the Hupps failed to file an amended or
separate notice of appeal. See Whitaker v. Garcetti, 486 F.3d 572, 585
(9th Cir. 2007).
We reject as without merit the Hupps’ due process contention regarding the
assignment of particular judges to pro se cases.
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).
The Hupps’ requests for judicial notice (Docket Entry Nos. 14 and 45) are
denied.
AFFIRMED.
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