Paul Hupp v. County of San Diego

NOT FOR PUBLICATION FILED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.

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