Carl Gordon v. Gavin Newsom

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARL GORDON,
Plaintiff-Appellant,
v.
GAVIN NEWSOM, in his official capacity
as the Governor of the State of California;
ROB BONTA, in his official capacity as
Attorney General of the State of California;
SHIRLEY WEBER, in her official capacity
as Secretary of State of the State of
California; STEVEN J. REYES, in his
official capacity as Chief Counsel Office of
the Secretary of State of the State of
California; DOES, 1 through 100,
Defendants-Appellees.
No. 22-55640
D.C. No.
2:21-cv-07270-FMO-MAR
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Fernando M. Olguin, District Judge, Presiding
Submitted March 8, 2024**
Before: O’SCANNLAIN, KLEINFELD, and SILVERMAN, Circuit Judges.
* 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
MAR 8 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Carl Gordon appeals pro se the district court’s judgment dismissing without
leave to amend his action under 42 U.S.C. § 1983 alleging that California’s
September 14, 2021, gubernatorial recall election violated his First and Fourteenth
Amendment rights and California law. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo. Porter v. Jones, 319 F.3d 483, 489 (9th Cir. 2003).
We affirm.
The district court properly dismissed Gordon’s claims for injunctive and
declaratory relief because they are moot and do not fall within the exception to the
mootness doctrine for claims that are capable of repetition, yet evading review. See
id. at 489-90 (“A case becomes moot ‘when the issues presented are no longer
‘live’ or the parties lack a legally cognizable interest in the outcome.’”; the
exception for claims that are capable of repetition, yet evading review may apply
“where: (1) the challenged action was too short in duration to be fully litigated
prior to its cessation or expiration; and (2) there is a reasonable expectation that the
same complaining party will be subjected to the same action again” (citation
omitted)).
The district court properly dismissed Gordon’s claims for damages because
they are barred by the Eleventh Amendment. See Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984) (“It is clear . . . that in the absence of consent
a suit in which the State or one of its agencies or departments is named as the

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defendant is proscribed by the Eleventh Amendment.”); Jackson v. Hayakawa, 682
F.2d 1344, 1350 (9th Cir. 1982) (“Eleventh Amendment immunity extends to
actions against state officers sued in their official capacities because such actions
are, in essence, actions against the governmental entity[.]”).
The district court did not abuse its discretion in dismissing the complaint
without leave to amend because amendment would have been futile. See Brown v.
Stored Value Cards, Inc., 953 F.3d 567, 573-74 (9th Cir. 2020) (setting forth
standard of review and factors that a court should consider in determining whether
to grant leave to amend, including futility of amendment).
The record does not support Gordon’s contentions of judicial misconduct or
bias. See Liteky v. United States, 510 U.S. 540, 555 (1994) (“judicial rulings alone
almost never constitute a valid basis for a bias or partiality motion”).
We decline to consider matters not distinctly raised and argued in the
opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per
curiam).
Gordon’s petition for initial hearing en banc (Dkt. Entry No. 5) is DENIED.
AFFIRMED.

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