JOHN ERVIN V. COUNTY OF SAN DIEGO, No. 19-56167 (9th Cir. 2021)
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The court issued a subsequent related opinion or order on January 5, 2022.
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOHN LAWRENCE ERVIN, Plaintiff-Appellant, v. COUNTY OF SAN DIEGO, No. FILED AUG 19 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS 19-56167 D.C. No. 3:14-cv-01142-WQH-MSB MEMORANDUM* Defendant-Appellee, and BRENDA DALY, individually, Defendant, DOES, 1-10 inclusive; et al., Defendants. Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding Submitted August 19, 2021** 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: D.W. NELSON, CANBY, and SILVERMAN, Circuit Judges. Appellant John Lawrence Ervin appeals pro se from the district court’s judgment dismissing for failure to state a claim his fourth amended complaint alleging civil rights violations. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Curry v. Yelp, Inc., 875 F.3d 1219, 1224 (9th Cir. 2017), and we affirm. The district court properly dismissed Ervin’s procedural due process claims because Ervin received notice and multiple hearings before defendant County placed Ervin’s name on the state’s Child Abuse Index. See Endy v. County of Los Angeles, 975 F.3d 757, 760 (9th Cir. 2020). We do not consider Ervin’s argument, newly made on appeal, that the County did not have probable cause to investigate Ervin. In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010). Dismissal of Ervin’s due process claims in connection with his listing in the Child Welfare Services Case Management System was proper because there is no stigma associated with an “unfounded” listing like the one Ervin alleged in his complaint. Endy, 975 F.3d at 765-68. The district court properly dismissed Ervin’s substantive due process claims because Ervin did not plausibly allege deprivation of a protected liberty interest. See Capp v. County of San Diego, 940 F.3d 1046, 1060 (9th Cir. 2019). 2 19-56167 The district court properly dismissed Ervin’s First Amendment retaliation claims because Ervin did not plausibly allege that any retaliatory animus was the “but for” cause of his listing on the CACI. See Nieves v. Bartlett, 139 S.Ct. 1715, 1722 (2019). The district court properly dismissed Ervin’s equal protection claim because Ervin did not plausibly allege that the County treated Ervin differently from those similarly situated without any rational basis. See, e.g., Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). The district court did not abuse its discretion by denying leave to amend this fourth amended complaint, where Ervin sought not to allege new facts but instead only new theories of legal liability. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). We affirm the district court’s judicial notice rulings because any error by the district court was harmless. Ervin’s motions for oral argument (Docket Entry No. 22) and for judicial notice (Docket Entry No. 30) are denied. We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations made for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). AFFIRMED. 3 19-56167
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