EMMANUEL BREW V. DANIEL FEHDERAU, No. 18-15752 (9th Cir. 2018)
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FILED NOT FOR PUBLICATION OCT 26 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT EMMANUEL LARS BREW, Plaintiff-Appellant, U.S. COURT OF APPEALS No. 18-15752 D.C. No. 1:17-cv-00681-LJO-EPG v. MEMORANDUM* DANIEL FEHDERAU, Deputy District Attorney Santa Clara County; et al., Defendants-Appellees. Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, Chief Judge, Presiding Submitted October 22, 2018** Before: SILVERMAN, GRABER, and GOULD, Circuit Judges. California state prisoner Emmanuel Lars Brew appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 * 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). (9th Cir. 2000). We may affirm on any ground supported by the record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008). We affirm. The district court properly dismissed Brew’s DNA evidence claim as barred by the Rooker-Feldman doctrine because Brew’s claim amounts to a forbidden “de facto” appeal of prior state court orders or is “inextricably intertwined” with those orders. Cooper v. Ramos, 704 F.3d 772, 777-79, 781-83 (9th Cir. 2012) (RookerFeldman doctrine deprives federal district courts of jurisdiction to hear direct and “de facto” appeals from state courts, as well as claims that are “inextricably intertwined” with state court orders challenged in de facto appeals). Dismissal of Brew’s claim challenging the denial of good-time credits was proper because Brew failed to allege facts sufficient to state a plausible claim. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are to be construed liberally, a plaintiff must present factual allegations sufficient to state a plausible claim for relief). The district court did not abuse its discretion by denying Brew leave to file a second amended complaint because further amendment would be futile. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review and explaining that dismissal without leave to amend is proper when amendment would be futile). We reject as without merit Brew’s contention that the magistrate judge 2 18-15752 lacked authority to issue findings and recommendations to dismiss the first amended complaint for failure to state a claim. See 28 U.S.C. § 636(b)(1)(B) & (C). We do not consider matters not 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). AFFIRMED. 3 18-15752
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