Patricia Bauerle v. U.s. Department of Health & Human Services;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICIA BAUERLE,
Plaintiff-Appellant,
v.
U.S. DEPARTMENT OF HEALTH &
HUMAN SERVICES; et al.,
Defendants-Appellees.
No. 14-16872
D.C. No. 4:12-cv-00532-CKJ
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted April 11, 2017**
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
Patricia Bauerle appeals pro se from the district court’s judgment dismissing
her action brought under the Americans with Disabilities Act and 42 U.S.C.
§ 1983. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the
district court’s dismissal under Federal Rule of Civil Procedure 12(b)(6), Hebbe v.
* 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
APR 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 14-16872
Pliler, 627 F.3d 338, 341 (9th Cir. 2010), and we affirm.
The district court properly dismissed Bauerle’s § 1983 claims against the
private defendants because Bauerle failed to allege facts sufficient to establish that
these defendants’ actions were fairly attributable to the state. See Briley v.
California, 564 F.2d 849, 855-56 (9th Cir. 1977) (“[P]rivate hospitals and
physicians have consistently been dismissed from [section] 1983 actions for failing
to come within the color of state law requirement . . . .”); see also Sparling v.
Hoffman Constr. Co., 864 F.2d 635, 638 (9th Cir. 1988) (“[T]he plaintiffs could
not possibly win relief and [therefore] the dismissal was appropriate even though it
was on the court’s own motion.”). In light of this determination, we do not
consider Bauerle’s contention regarding the timeliness of her First Amendment
claims against private defendants.
The district court did not abuse its discretion in dismissing Bauerle’s § 1983
claims against the private defendants without leave to amend because amendment
would be futile. See United States v. Corinthian Colls., 655 F.3d 984, 995 (9th
Cir. 2011) (setting forth standard of review and explaining that leave to amend
may be denied if amendment would be futile).
The district court properly dismissed Bauerle’s claims against the Arizona
Department of Health Services as barred by the Eleventh Amendment. See
Southern Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498, 508 (9th Cir.

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1990) (claims seeking prospective relief against a state agency are barred by the
Eleventh Amendment where the plaintiff fails to name any state officials).
The district court properly dismissed Bauerle’s claims against the United
States Department of Health and Human Services because Bauerle did not allege
facts sufficient to establish that a federal agent acted under the color of state law.
See Scott v. Rosenberg, 702 F.2d 1263, 1269 (9th Cir. 1983) (discussing
requirements under § 1983 to determine whether a federal agency acted under the
color of state law).
The district court did not err in failing to sua sponte recuse itself because
Bauerle did not demonstrate extrajudicial bias or prejudice. See 28 U.S.C. § 455;
Noli v. Comm’r., 860 F.2d 1521, 1527 (9th Cir. 1988) (“[I]f no motion is made to
the judge . . . a party will bear a greater burden on appeal in demonstrating that the
judge . . . [erred] in failing to grant recusal under section 455.” (alteration in
original) (citation and internal quotation marks omitted)).
The district court properly determined that obstruction of justice was not a
cognizable civil cause of action.
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).
AFFRIMED.

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