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Charles Kinney v. State Bar of California, 15-55329 (2017)

Court: Court of Appeals for the Ninth Circuit Number: 15-55329 Visitors: 11
Filed: Jan. 19, 2017
Latest Update: Mar. 03, 2020
Summary: NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 19 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CHARLES G. KINNEY, No. 15-55329 Plaintiff-Appellant, D.C. No. 2:14-cv-01591-PSG-MRW v. STATE BAR OF CALIFORNIA; et al., MEMORANDUM* Defendants-Appellees. Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, District Judge, Presiding Submitted January 12, 2017** Pasadena, California Before: KOZINSKI, McKEOWN, and
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                             NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                        JAN 19 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT



 CHARLES G. KINNEY,                                No.   15-55329

                   Plaintiff-Appellant,            D.C. No.
                                                   2:14-cv-01591-PSG-MRW
   v.

 STATE BAR OF CALIFORNIA; et al.,                  MEMORANDUM*

                   Defendants-Appellees.

                     Appeal from the United States District Court
                         for the Central District of California
                     Philip S. Gutierrez, District Judge, Presiding

                            Submitted January 12, 2017**
                               Pasadena, California

Before: KOZINSKI, McKEOWN, and WATFORD, Circuit Judges.

        Charles Kinney appeals various rulings arising out of his suit against the

State Bar of California (“the State Bar”), two California state judges, the City of

Los Angeles (“the City”), and City employees Peter Langsfeld, Carolyn Cooper,


        *
             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).
and Wesley Tanijiri. We review de novo the district court’s dismissal of Kinney’s

various claims. Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 
249 F.3d 1132
, 1135 (9th Cir. 2001) (summary judgment); Honey v. Distelrath, 
195 F.3d 531
, 533 (9th Cir. 1999) (judgment on the pleadings); Miller v. Glen & Helen

Aircraft, Inc., 
777 F.2d 496
, 498 (9th Cir. 1985) (motion to dismiss). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      The district court did not err by dismissing Kinney’s State Bar claims on

Eleventh Amendment grounds. Hirsh v. Justices of the Supreme Court of Cal., 
67 F.3d 708
, 715 (9th Cir. 1995) (per curiam). And judicial immunity protects the

California state judges from Kinney’s claims against them. Ashelman v. Pope, 
793 F.2d 1072
, 1075 (9th Cir. 1986) (en banc).

      Kinney’s retaliation claims brought under 42 U.S.C. § 1983 against

Langsfeld also fail. Kinney did not sufficiently plead that Langsfeld’s actions

either have had or would have a chilling effect on Kinney’s First Amendment

activities. See Lacey v. Maricopa Cty., 
693 F.3d 896
, 916–17 (9th Cir. 2012) (en

banc). To the extent Kinney seeks to enjoin the enforcement of state court

decisions deeming him a vexatious litigant, lower federal courts “possess no power

whatever to sit in direct review of state court decisions.” See Atl. Coast Line R.R.

                                          2
v. Bhd. of Locomotive Eng’rs, 
398 U.S. 281
, 296 (1970).

      The district court also did not err in dismissing all of Kinney’s § 1983 claims

against the City. Insofar as Kinney attempts to advance due process and equal

protection claims because of the City’s apparent failure to follow its civil codes, he

lacks standing for these generalized grievances. Hollingsworth v. Perry, 
133 S. Ct. 2652
, 2662 (2013). Dismissal of the remainder of Kinney’s § 1983 claim against

the City was also appropriate. Kinney’s second amended complaint does not

specify exactly which “improper custom, policy, and/or practice” he finds

objectionable, nor does it assert that the supposedly problematic policy was

widespread or condoned by officials with final policymaking authority. See Ulrich

v. City & Cty. of San Francisco, 
308 F.3d 968
, 984–85 (9th Cir. 2002) (describing

the ways to establish municipal liability under Monell v. Department of Social

Services, 
436 U.S. 658
(1978)).

      Because Cooper is entitled to absolute witness immunity for her complaint

about Kinney to the State Bar, the district court did not err in dismissing Kinney’s

claim against Cooper. See Burns v. Cty. of King, 
883 F.2d 819
, 821–23 (9th Cir.

1989) (per curiam); cf. Lebbos v. State Bar, 
211 Cal. Rptr. 847
, 853 (Ct. App.

1985) (“[A]ny communication with an official agency designed to prompt

                                          3
investigation by that agency is absolutely privileged.”).

      The district court similarly did not err in granting summary judgment on

statute of limitation grounds for Tanijiri on Kinney’s § 1983 claim against him.

When conducting its analysis, the district court appropriately disregarded Kinney’s

uncorroborated testimony that was both self-serving and contradicted by his prior

actions. See Kennedy v. Applause, Inc., 
90 F.3d 1477
, 1481 (9th Cir. 1996).

      We review for abuse of discretion the denial of Kinney’s motion to

disqualify the district judge in this case, see United States v. Hernandez-Escarsega,

886 F.2d 1560
, 1581 (9th Cir. 1989), and we affirm because the motion entirely

lacks merit.

      Kinney’s other contentions are either unpersuasive or inappropriate for

review.

      AFFIRMED.




                                          4

Source:  CourtListener

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