NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 8 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANGELA MICHELLE MORELLI, No. 20-16506
Plaintiff-Appellant, D.C. No. 1:19-cv-00088-JMS-WRP
v.
MEMORANDUM*
JOSHUA B. HYMAN; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, District Judge, Presiding
Submitted June 21, 2021**
Before: SILVERMAN, WATFORD, and VANDYKE, Circuit Judges.
Angela Michelle Morelli appeals pro se from the district court’s judgment
dismissing her 42 U.S.C. § 1983 action arising out of her child custody
proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
dismissal under Federal Rule of Civil Procedure 12(b)(6). Dougherty v. City of
*
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).
Covina, 654 F.3d 892, 897 (9th Cir. 2011). We affirm.
The district court properly dismissed Morelli’s claims against Hyman
because Morelli failed to allege facts sufficient to show that he is a state actor. See
George v. Pac.-CSC Work Furlough, 91 F.3d 1227, 1229 (9th Cir. 1996) (plaintiff
alleging infringement of constitutional rights by private parties must show that the
infringement constitutes state action).
The district court properly dismissed Morelli’s claims against the County of
Maui as time-barred. See Haw. Rev. Stat. § 657-7 (two-year statute of limitations
for personal injury actions); Jones v. Blanas, 393 F.3d 918, 926-27 (9th Cir. 2004)
(noting that, “for actions under 42 U.S.C. § 1983, courts apply the forum state’s
statute of limitations for personal injury actions”).
The district court properly dismissed Morelli’s claims against Hawaii and
Hawaii judges as barred by the Eleventh Amendment and judicial immunity,
respectively. See Franceschi v. Schwartz, 57 F.3d 828, 831 (9th Cir. 1995) (“The
Eleventh Amendment bars suits which seek either damages or injunctive relief
against a state, an arm of the state, its instrumentalities, or its agencies.” (citation
and internal quotation marks omitted)); Ashelman v. Pope, 793 F.2d 1072, 1075-76
(9th Cir. 1986) (en banc) (judges are immune from suit when performing judicial
acts).
The district court properly dismissed Morelli’s claims against the United
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States as frivolous because Morelli’s claims lacked any arguable basis in law or
fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989) (a “frivolous” claim lacks
an arguable basis either in law or in fact; the “term ‘frivolous’ . . . embraces not
only the inarguable legal conclusion, but also the fanciful factual allegation”).
The district court did not abuse its discretion in denying further leave to
amend because amendment would have been futile. See Gordon v. City of
Oakland, 627 F.3d 1092, 1094-95 (9th Cir. 2010) (setting forth standard of review
and explaining that dismissal without leave to amend is proper when amendment
would be futile).
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).
Morelli’s motion for leave to file multiple reply briefs (Docket Entry No. 34)
is granted. The Clerk will file the reply briefs submitted at Docket Entry Nos. 30
to 33.
AFFIRMED.
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