United States v. 2020-05-06 | 19-35083 | RISCHELE FORTHOFFER V. SHANNON FORE | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RISCHELE FORTHOFFER,

Plaintiff-Appellant,

v.

SHANNON R. FORE; TRINA M. HOLT,

Defendants-Appellees,

and

BRITTANY DUNLOP,

Defendant,

v.

DAVID FORTHOFFER,

Movant-Appellant.

No. 19-35083

D.C. No. 3:17-cv-00235-TMB

MEMORANDUM
*

Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, Chief District Judge, Presiding

Submitted May 4, 2020
**

*
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

MAY 6 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 19-35083

Before: SCHROEDER, CANBY, and TROTT, Circuit Judges.

Rischele Forthoffer appeals pro se from the district court’s Federal Rule of
Civil Procedure 12(b)(6) dismissal of her 42 U.S.C. § 1983 action alleging a
violation of her Fourth Amendment rights by Defendants Shannon Fore and Trina
Holt.
1
We have jurisdiction under 28 U.S.C. § 1291. We review de novo the
dismissal of her complaint and denial of her husband, David Forthoffer’s, motion
to intervene under Federal Rule of Civil Procedure 24(a)(2). Lacey v. Maricopa
County, 693 F.3d 896, 911 (9th Cir. 2012) (en banc); Canatella v. California, 404
F.3d 1106, 1112 (9th Cir. 2005). We review denial of Plaintiff’s motion for leave
to amend for abuse of discretion. Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys.,
Inc., 637 F.3d 1047, 1058 (9th Cir. 2011). We affirm and remand with
instructions.
The district court properly dismissed Plaintiff’s § 1983 claims for monetary
damages because they “necessarily imply the invalidity of [her prior] conviction”
for attempted sexual abuse of a minor and are therefore barred by Heck v.
Humphrey, 512 U.S. 477, 486–87 (1994). Plaintiff’s allegations against both
Defendants are not “distinct temporally or spatially from the factual basis for [her]
conviction”. Beets v. County of Los Angeles, 669 F.3d 1038, 1042 (9th Cir. 2012).

1
Plaintiff does not appeal the dismissal of her claims against Brittany Dunlop.

3 19-35083
Plaintiff’s second motion for leave to amend was futile and properly denied.
See McQuillion v. Schwarzenegger, 369 F.3d 1091, 1099 (9th Cir. 2004)
(amendment futile where “plaintiffs could not state cognizable damages claims
consistent with Heck”). Denial was also proper as to David Forthoffer’s motion to
intervene. This Circuit has not recognized loss of consortium as a standalone
cause of action under federal law. Getz v. Boeing Co., 654 F.3d 852, 859 (9th Cir.
2011) (“loss of consortium do[es] not arise under federal law”); Arakaki v.
Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003) (where Plaintiff’s case is no longer
proceeding on a particular claim, “intervention is inappropriate as a matter of
right”).
Dismissal should be without prejudice, however, so that Plaintiff can
“reassert [her] claims if [s]he ever succeeds in invalidating [her] conviction.”
Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995). We therefore
remand with instructions to the district court to enter judgment without prejudice
as to Plaintiff’s claims against Defendant Fore.
AFFIRMED; REMANDED with instructions.