Julie Schmidt v. Tacoma Police Department

FILED
NOT FOR PUBLICATION SEP 25 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

JULIE SCHMIDT; LEON E. GERHARD, No. 11-35010

Plaintiffs - Appellants, D.C. No. 3:09-cv-05135-RBL

v.
MEMORANDUM *
TACOMA POLICE DEPARTMENT; et
al.,

Defendants - Appellees.

Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding

Submitted September 10, 2012 **

Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

Julie Schmidt and Leon E. Gerhard appeal pro se from the district court’s

summary judgment in their action alleging constitutional, disability discrimination,

and defamation claims arising from their eviction from their residence due to

*
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).
unsafe conditions. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). We

affirm in part and dismiss in part.

The district court properly granted summary judgment for the reasons stated

in its order filed on December 6, 2010.

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

to appoint counsel because plaintiffs failed to show exceptional circumstances. See

Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting forth standard of

review and requirement of “exceptional circumstances” for appointment of

counsel).

We do not consider matters 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)

(per curiam).

We lack jurisdiction to review the district court’s order striking the default

entered against defendant Galvan and dismissing plaintiffs’ claims against him

because plaintiffs failed to file an appeal or amended notice of appeal from that

post-judgment order. See Whitaker v. Garcetti, 486 F.3d 572, 585 (9th Cir. 2007)

(appellant generally must file a notice of appeal or amend a previously filed notice

of appeal to secure review of a post-judgment order). Accordingly, we dismiss that

2 11-35010
portion of the appeal.

Plaintiffs’ request that defendant Tacoma Power cease “harassing” them

until this case is decided, received on August 13, 2012, is denied as moot.

AFFIRMED in part; DISMISSED in part.

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