NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN EDWARD MALNES, No. 16-16208
Plaintiff-Appellant, D.C. No. 3:16-cv-08008-GMS
v.
MEMORANDUM*
STATE OF ARIZONA; MICHELE
REAGAN,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Submitted June 26, 2017**
Before: PAEZ, BEA, and MURGUIA, Circuit Judges.
Brian Edward Malnes appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging a violation of his rights under the
Fifteenth Amendment. We have jurisdiction under 28 U.S.C. § 1291. We review
*
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). Accordingly, we deny
Malnes’s request for oral argument, set forth in his reply brief.
de novo the district court’s dismissal for failure to state a claim under Federal Rule
of Civil Procedure 12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010).
We affirm.
The district court properly dismissed Malnes’s Fifteenth Amendment claim
for damages against defendant Reagan in her official capacity, and for damages
and injunctive relief against the State of Arizona, because the claim is barred by
Eleventh Amendment immunity. See Porter v. Jones, 319 F.3d 483, 491 (9th Cir.
2003) (“The Eleventh Amendment erects a general bar against federal lawsuits
brought against a state.”). We reject as without merit Malnes’s claim that
defendants’ settlement offer waived this immunity. See Edelman v. Jordan, 415
U.S. 651, 673 (1974) (“In deciding whether a State has waived its constitutional
protection under the Eleventh Amendment, we will find waiver only where stated
by the most express language or by such overwhelming implications from the text
as (will) leave no room for any other reasonable construction.” (internal quotation
marks omitted)).
The district court properly dismissed Malnes’s Fifteenth Amendment claim
for prospective injunctive relief against defendant Reagan in her official capacity
because Malnes failed to allege facts sufficient to establish that Arizona’s felon
disenfranchisement statute reflects racial animus or discrimination, or deprives him
of the right to vote due to his “previous condition of servitude.” U.S. Const.
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amend. XV, § 1; Farrakhan v. Gregoire, 623 F.3d 990, 993 (9th Cir. 2010) (“Felon
disenfranchisement laws have a long history in the United States . . . predat[ing]
the Jim Crow era and, with a few notable exceptions, have not been adopted based
on racial considerations.” (citations omitted)); see also U.S. Const. amend. XIII
(“Neither slavery nor involuntary servitude, except as a punishment for crime
whereof the party shall have been duly convicted, shall exist within the United
States, or any place subject to their jurisdiction.” (emphasis added)).
The district court properly denied as moot Malnes’s pending motions after
dismissing the action with prejudice.
Contrary to Malnes’s contentions, the district court was not required to hold
a hearing and allow oral argument prior to ruling on Malnes’s motions. See Fed.
R. Civ. P. 78(b); D. Ariz. Civ. L.R. 7.2(f) (“The Court may decide motions without
oral argument.”).
The district court did not err in failing to recuse itself sua sponte because
Malnes failed to establish extrajudicial bias or prejudice. See 28 U.S.C. § 455;
Noli v. Comm’r, 860 F.2d 1521, 1527 (9th Cir. 1988) (“[I]f no motion is made to
the judge . . . a party will bear a greater burden on appeal in demonstrating that the
judge . . . [erred] in failing to grant recusal under section 455.” (alteration in
original) (citation and internal quotation marks omitted)).
We do not consider matters not specifically and distinctly raised and argued
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in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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