Drake Ward v. City of Barstow;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DRAKE WARD,
Plaintiff-Appellant,
v.
CITY OF BARSTOW; et al.,
Defendants-Appellees.
No. 17-56670
D.C. No. 5:15-cv-00444-DSF-KES
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted September 12, 2018**
Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.
Drake Ward 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 for failure to state a claim and
the district court’s determination regarding judicial immunity. Sadoski v. Mosley,
* 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).
FILED
SEP 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 17-56670
435 F.3d 1076, 1077 n.1 (9th Cir. 2006). We affirm.
The district court properly dismissed Ward’s due process and conspiracy
claims for damages against defendants Rogan and Dowd in the first amended
complaint (“FAC”) because these defendants are entitled to judicial and
prosecutorial immunity. See Garmon v. County of Los Angeles, 828 F.3d 837,
842-43 (9th Cir. 2016) (explaining the application of absolute prosecutorial
immunity); Duvall v. County of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001)
(describing factors relevant to whether an act is judicial in nature and subject to
judicial immunity).
The district court properly dismissed Ward’s due process and conspiracy
claims for declaratory relief against Rogan and Dowd in the FAC because Ward
lacks standing to seek declaratory relief. See Mayfield v. United States, 599 F.3d
964, 969-71 (9th Cir. 2010) (plaintiff must demonstrate standing separately for
each form of relief sought; to establish Article III standing, plaintiff must show that
he or she faces imminent injury on account of defendant’s conduct and that a
favorable decision will likely redress his or her injury).
The district court properly dismissed Ward’s unlawful search and seizure
claims, false arrest claim, due process and conspiracy claims, free speech claim,
and municipal and supervisory liability claims in the fourth amended complaint
(“4AC”) because Ward failed to allege facts sufficient to state plausible claims.

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See Ashcroft v. Iqbal, 556 U.S. 662, 678, 681 (2009) (to avoid dismissal, “a
complaint must contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face” and conclusory allegations are not entitled to
be assumed true) (citation and internal quotation marks omitted)); Hebbe v. Pliler,
627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are construed
liberally, plaintiff must present factual allegations sufficient to state a plausible
claim for relief); Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir.
2004) (a party’s conclusory allegations, unwarranted deductions of fact, or
unreasonable inferences need not be accepted as true).
The district court properly dismissed Ward’s Sixth Amendment
Confrontation Clause claim in the 4AC because Ward failed to allege facts
sufficient to state a plausible claim. See Austin v. United States, 509 U.S. 602, 608
(1993) (“The protections provided by the Sixth Amendment are explicitly confined
to ‘criminal prosecutions.’” (citation omitted)). To the extent this claim is based
on the subpoena issued to Dowd in Ward’s criminal proceeding, the district court
properly dismissed this claim for lack of subject matter jurisdiction under the
Rooker-Feldman doctrine because the claim constituted a forbidden “de facto
appeal” of the state court’s order quashing the subpoena. See Noel v. Hall, 341
F.3d 1148, 1163-65 (9th Cir. 2003) (discussing proper application of the Rooker-
Feldman doctrine).

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The district court did not abuse its discretion by dismissing the FAC as to
Rogan and Dowd, or the 4AC as to all named defendants, without further leave to
amend because amendment would have been 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).
The district court’s consideration of the search and arrest warrants and their
supporting documents in the context of a motion to dismiss was proper because the
documents were incorporated by reference into the 4AC. See United States v.
Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003) (district court may consider
document incorporated by reference in the complaint “if the plaintiff refers
extensively to the document or the document forms the basis of the plaintiff’s
claim”).
We reject as unsupported by the record Ward’s contentions that the district
court failed to construe allegations in his favor or assumed facts favorable to
defendants.
We do not consider matters not specifically and 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.

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