Charles G. Kinney v. Philip Gutierrez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES G. KINNEY,
Plaintiff-Appellant,
v.
PHILIP GUTIERREZ,
Defendant-Appellee.
No. 16-56750
D.C. No. 2:16-cv-07440-DMG
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Submitted December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
Charles G. Kinney appeals pro se from the district court’s order dismissing
his action seeking a declaratory judgment. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo the district court’s dismissal on the basis of judicial
immunity. Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir. 1999). We affirm.
* 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). Kinney’s request for oral
argument, set forth in the opening brief, is denied.
FILED
DEC 28 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 16-56750
The district court properly dismissed Kinney’s claims against Judge
Gutierrez on the basis of judicial immunity. See 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). Contrary to Kinney’s
contention, Judge Gutierrez was not acting in a ministerial or administrative
capacity when he issued the remand orders.
The district court did not abuse its discretion by dismissing the complaint
without leave to amend because amendment would be futile. 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).
We reject as unsupported by the record Kinney’s contention that the district
judge was biased.
We do not consider 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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