Charles L. Caddell v. Helena Elder Housing, Inc.;

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES L. CADDELL,
Plaintiff - Appellant,
v.
HELENA ELDER HOUSING, INC.; et
al.,
Defendants - Appellees.
No. 10-36110
D.C. No. 6:10-cv-00011-DWM
MEMORANDUM*
CHARLES L. CADDELL,
Plaintiff - Appellant,
v.
CITY OF HELENA; et al.,
Defendants - Appellees.
No. 11-35510
D.C. No. 6:11-cv-00020-DWM
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
FILED
OCT 18 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The panel unanimously concludes these cases are suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
10-36110 2
Submitted October 9, 2012**
Before: RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.
In these consolidated appeals, Charles L. Caddell appeals pro se from the
district court’s judgments in his actions against the City of Helena (“the City”) and
Helena Elder Housing, Inc. (“HEH”) in connection with two citations Caddell was
issued for disorderly conduct. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo. Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003) (summary
judgment); Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002) (res
judicata); Nelson v. Heiss, 271 F.3d 891, 893 (9th Cir. 2001) (Fed. R. Civ. P.
12(b)(6) dismissal). We affirm.
In No. 10-36110, the district court properly granted summary judgment for
the City because Caddell failed to establish a genuine dispute of material fact as to
whether the alleged federal constitutional violations resulted from an official city
policy, custom, or practice. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-
91 (1978) (setting forth requirements for a § 1983 claim of municipal liability).
The district court properly dismissed Caddell’s due process claims against
HEH because Caddell failed to allege the deprivation of a protected liberty or

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10-36110 3
property interest. See Shanks v. Dressel, 540 F.3d 1082, 1090 (9th Cir. 2008)
(procedural due process violation requires a deprivation of a protected liberty or
property interest by the government and lack of process); see also Miller v. Reed,
176 F.3d 1202, 1205-06 (9th Cir. 1999) (there is no fundamental right to drive, and
denying plaintiff a driver’s license did not unconstitutionally impede right to
interstate travel).
The district court properly dismissed Caddell’s equal protection claims
against HEH because Caddell failed to allege facts demonstrating a discriminatory
intent. See Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1026 (9th
Cir. 1998) (equal protection claim “must plead intentional unlawful discrimination
or allege facts that are at least susceptible of an inference of discriminatory
intent”).
The district court did not abuse its discretion in dismissing Caddell’s
complaint without leave to amend because amendment would have been futile. See
Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1530 (9th Cir. 1995) (district court does not
abuse its discretion to deny leave to amend where it “could reasonably conclude
that further amendment would be futile”).
The district court did not abuse its discretion in declining to exercise
supplemental jurisdiction over the remaining state law claims after it properly

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10-36110 4
dismissed Caddell’s federal claims. See 28 U.S.C. § 1367(c)(3); Warren v. Fox
Family Worldwide, Inc., 328 F.3d 1136, 1143 n.7 (9th Cir. 2003).
Caddell’s contentions concerning whether the district court conducted a de
novo review of the magistrate judge’s findings and recommendations are
unsupported by the record.
In No. 11-35510, the district court properly dismissed Caddell’s second
action against the City and HEH as barred by the doctrine of res judicata because
Caddell raised, or could have raised, these claims in his earlier action that involved
these same defendants and was decided on the merits. See Stewart, 297 F.3d at
956 (res judicata bars litigation in a subsequent action of “‘any claims that were
raised or could have been raised’ in a prior action” (emphasis and citation
omitted)); see also Beard v. Sheet Metal Workers Union, Local 150, 908 F.2d 474,
477 n.3 (9th Cir. 1990) (a dismissal with prejudice constitutes a final judgment on
the merits for purposes of res judicata).
Caddell’s contentions concerning the removal of this case from state court
are unpersuasive.
In both Nos. 10-36110 and 11-35510, we do not consider matters not
specifically and distinctly raised and argued in the opening briefs, or issues raised

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10-36110 5
for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir.
2009) (per curiam).
Caddell’s “motion for relief from consequences of lower court order,” filed
on January 30, 2012, is denied as unnecessary.
AFFIRMED.

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