RISCHELE FORTHOFFER V. SHANNON FORE, No. 19-35083 (9th Cir. 2020)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED MAY 6 2020 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT RISCHELE FORTHOFFER, Plaintiff-Appellant, v. No. U.S. COURT OF APPEALS 19-35083 D.C. No. 3:17-cv-00235-TMB MEMORANDUM* SHANNON R. FORE; TRINA M. HOLT, Defendants-Appellees, and BRITTANY DUNLOP, Defendant, v. DAVID FORTHOFFER, Movant-Appellant. Appeal from the United States District Court for the District of Alaska Timothy M. Burgess, Chief District Judge, Presiding Submitted May 4, 2020** * 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). Before: SCHROEDER, CANBY, and TROTT, Circuit Judges. Rischele Forthoffer appeals pro se from the district court’s Federal Rule of Civil Procedure 12(b)(6) dismissal of her 42 U.S.C. § 1983 action alleging a violation of her Fourth Amendment rights by Defendants Shannon Fore and Trina Holt.1 We have jurisdiction under 28 U.S.C. § 1291. We review de novo the dismissal of her complaint and denial of her husband, David Forthoffer’s, motion to intervene under Federal Rule of Civil Procedure 24(a)(2). Lacey v. Maricopa County, 693 F.3d 896, 911 (9th Cir. 2012) (en banc); Canatella v. California, 404 F.3d 1106, 1112 (9th Cir. 2005). We review denial of Plaintiff’s motion for leave to amend for abuse of discretion. Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011). We affirm and remand with instructions. The district court properly dismissed Plaintiff’s § 1983 claims for monetary damages because they “necessarily imply the invalidity of [her prior] conviction” for attempted sexual abuse of a minor and are therefore barred by Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). Plaintiff’s allegations against both Defendants are not “distinct temporally or spatially from the factual basis for [her] conviction”. Beets v. County of Los Angeles, 669 F.3d 1038, 1042 (9th Cir. 2012). 1 Plaintiff does not appeal the dismissal of her claims against Brittany Dunlop. 2 19-35083 Plaintiff’s second motion for leave to amend was futile and properly denied. See McQuillion v. Schwarzenegger, 369 F.3d 1091, 1099 (9th Cir. 2004) (amendment futile where “plaintiffs could not state cognizable damages claims consistent with Heck”). Denial was also proper as to David Forthoffer’s motion to intervene. This Circuit has not recognized loss of consortium as a standalone cause of action under federal law. Getz v. Boeing Co., 654 F.3d 852, 859 (9th Cir. 2011) (“loss of consortium do[es] not arise under federal law”); Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003) (where Plaintiff’s case is no longer proceeding on a particular claim, “intervention is inappropriate as a matter of right”). Dismissal should be without prejudice, however, so that Plaintiff can “reassert [her] claims if [s]he ever succeeds in invalidating [her] conviction.” Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995). We therefore remand with instructions to the district court to enter judgment without prejudice as to Plaintiff’s claims against Defendant Fore. AFFIRMED; REMANDED with instructions. 3 19-35083
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