Archibald Cunningham v. Michael Coombs, sued in underlying arbitration and court proceedings;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARCHIBALD CUNNINGHAM,
Plaintiff - Appellant,
v.
MICHAEL COOMBS, sued in underlying
arbitration and court proceedings; et al.,
Defendants - Appellees.
No. 14-15266
D.C. No. 3:13-cv-04627-WHO
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick III, District Judge, Presiding
Submitted July 26, 2016**
Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.
Archibald Cunningham, an attorney, appeals pro se from the district court’s
judgment dismissing his 42 U.S.C. § 1983 action alleging federal and state law
claims arising out of arbitration and state court proceedings involving his property.
FILED
AUG 04 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal
under Federal Rule of Civil Procedure 12(b)(6). Kahle v. Gonzales, 487 F.3d 697,
699 (9th Cir. 2007). We may affirm on any ground supported by the record.
Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008).
We affirm.
The district court properly dismissed the claims against Attorney General
Harris on the basis of Eleventh Amendment immunity. See Ass’n des Eleveurs de
Canards et d’Oies du Quebec v. Harris, 729 F.3d 937, 943 (9th Cir. 2013)
(discussing Eleventh Amendment immunity).
The district court properly dismissed Cunningham’s claims against Judge
Cheng, and Justices Kline and Richman, on the basis of judicial immunity and
because they are not proper parties under § 1983. See Wolfe v. Strankman, 392
F.3d 358, 365 (9th Cir. 2004) (judges are not proper defendants in a § 1983 action
challenging a state law when acting as adjudicators, and “a judge acts as a neutral
adjudicator in determining whether a plaintiff is a vexatious litigant upon a motion
by a defendant, and in deciding whether to require the litigant to post a security
bond”); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc)
(discussing judicial immunity).
The district court properly dismissed the claim against Chief Justice Cantil-
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Sakauye because Cunningham failed to allege facts sufficient to allege a plausible
claim that, as applied, California’s vexatious litigant statute violated his
constitutional rights. See Wolfe v. George, 486 F.3d 1120 (9th Cir. 2007)
(upholding constitutionality of California vexatious litigant statute).
Dismissal of the constitutional claims against defendants McKay, Coombs,
and Woods (the “Non-Judicial Defendants”) was proper as barred by the doctrine
of collateral estoppel. See First Nat’l Bank v. Russell (In re Russell), 76 F.3d 242,
244-45 (9th Cir. 1996) (explaining that California’s res judicata and collateral
estoppel principles apply where underlying judgment was rendered in state court,
and setting forth elements of collateral estoppel under California law).
The district court properly dismissed Cunningham’s fraud claim against the
Non-Judicial Defendants as barred by the litigation privilege. See Graham-Sult v.
Clainos, 756 F.3d 724, 741-42 (9th Cir. 2014) (discussing California’s litigation
privilege).
The district court properly dismissed Cunningham’s breach of contract claim
against the Non-Judicial Defendants as barred by the doctrine of res judicata. See
Fed’n of Hillside & Canyon Ass’ns v. City of Los Angeles, 24 Cal. Rptr. 3d 543,
557-58 (Ct. App. 2004) (elements of res judicata under California law).
We do not consider matters not specifically and distinctly raised and argued
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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).
The Non-Judicial Defendants’ motion, filed August 5, 2015, and
Cunningham’s motion, filed June 1, 2016, are denied as unnecessary.
AFFIRMED.
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