Michael Huftile v. L. C. Miccio-Fonseca

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL HUFTILE,
Plaintiff - Appellant,
v.
L. C. MICCIO-FONSECA,
Defendant - Appellee.
No. 09-17494
D.C. No. 2:03-cv-01522-FCD-
DAD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, District Judge, Presiding
Submitted December 14, 2010 **
Before: GOODWIN, WALLACE, and THOMAS, Circuit Judges
Michael Huftile, a former civil detainee under California’s Sexually Violent
Predator Act, appeals pro se the district court’s dismissal of his second amended
complaint in this 42 U.S.C. § 1983 suit against Dr. L.C. Miccio-Fonseca in
FILED
DEC 27 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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connection with her evaluation of whether he was a “sexually violent predator”
under California Welfare and Institutions Code § 6600(a)(1). This court reviews a
district court’s denial of a preliminary injunction for abuse of discretion and
conclusions of law de novo. Alliance for Wild Rockies v. Cottrell, 622 F.3d 1045,
1049 (9th Cir. 2010). We affirm.
Huftile’s complaint alleges three due process violations: (1) he was not
given advance notice of the evaluation; (2) the evaluation was not audio recorded;
and (3) Miccio-Fonseca’s reliance on documents concerning his 1984 South
Dakota conviction for raping his adopted daughter led to her faulty conclusion that
it was a qualifying offense. The complaint seeks injunctive relief in the form of
expungement of all references to the South Dakota conviction in Miccio-Fonseca’s
report. The district court dismissed the complaint because it failed to raise
cognizable constitutional claims and because Huftile did not show immediate and
irreparable harm.
On appeal, Huftile has explicitly abandoned all three claims, expressing a
clear intent to “not put before this honorable court the [three] issues.” To the
extent he now seeks expungement based on other grounds, he has waived those
arguments by not raising them in the district court. See White v. Martel, 601 F.3d
882, 885 (9th Cir. 2010).

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Section 3626(a)(2) requires a preliminary injunction “[i]n any civil action1
with respect to prison conditions” to be narrowly drawn, extend no further than
necessary to correct the harm, and be the least intrusive means necessary to correct
the harm.
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Huftile also appeals what he believes was the district court’s erroneous
application to civil detainees of the heightened standard under 18 U.S.C. §
3626(a)(2). The district court could not have applied the statute to Huftile because1
it did not issue an injunction. We need not consider whether § 3626(a)(2) applies
to him.
We do not consider Huftile’s “Notice of Reinstatement of Damages &
Declaratory Relief” filed on August 3, 2010.
AFFIRMED.

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