Terrence Kinsella v. Steve Cooley, individually and as District Attorney for Los Angeles County;

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRENCE KINSELLA,
Plaintiff - Appellant,
v.
STEVE COOLEY, individually and as
District Attorney for Los Angeles County;
et al.,
Defendants - Appellees.
No. 08-56941
D.C. No. 2:07-cv-04158-GHK-CT
MEMORANDUM *
Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding
Submitted March 4, 2010 **
Pasadena, California
Before: CANBY, GOULD and IKUTA, Circuit Judges.
FILED
MAR 08 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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We find no error in the district court’s dismissal of Kinsella’s claims against
the Los Angeles District Attorney’s Office defendants. “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice” to survive a motion to dismiss. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009). Kinsella’s complaint failed to show that the defendants were under a legal
duty to file the abstract of judgment, as required to state a cognizable claim under
42 U.S.C. § 1983. See Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990);
Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
With respect to Kinsella’s claim against the Los Angeles Sheriff’s
Department defendants, Kinsella failed to raise the issue of tolling under California
Government Code section 945.3 before the district court. While we have
discretion to review the issue in the first instance, see United States v. Carlson, 900
F.2d 1346, 1349 (9th Cir. 1990) (granting the appellate court discretion to review
issues of pure law for the first time on appeal), we hold that the “particular
circumstances of the case [do not] overcome our presumption against hearing new
arguments” here, see Dream Palace v. County of Maricopa, 384 F.3d 990, 1005
(9th Cir. 2004).
AFFIRMED.

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