Stanley Clarke v. City of Madera

FILED

NOT FOR PUBLICATION MAR 10 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

STANLEY BRADFORD CLARKE, No. 08-15751

Plaintiff - Appellant, D.C. No. 1:07-CV-01806-LJO-

DLB

v.

CITY OF MADERA; et al., MEMORANDUM *

Defendants - Appellees.

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, District Judge, Presiding

Submitted February 16, 2010 **

Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

Stanley Bradford Clarke appeals pro se from the district court’s judgment

dismissing his action alleging claims under 42 U.S.C. § 1983 and state law. He

*

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).

JS/Research

also appeals from the order denying his motion for reconsideration. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to

state a claim and a dismissal on qualified immunity grounds. Kwai Fun Wong v.

United States, 373 F.3d 952, 966 n.18 (9th Cir. 2004). We review for an abuse of

discretion an order denying reconsideration. Sch. Dist. No. 1J, Multnomah County,

Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). We affirm.

The district court properly dismissed the federal claims against the City of

Madera because Clarke failed to allege constitutional deprivations resulting from

any official custom or policy. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658,

690-91 (1978).

The district court properly dismissed the federal claims against the

remaining defendants on qualified immunity grounds because, regardless of the

constitutionality of their actions, defendants did not violate any of Clarke’s clearly

established rights. See Pearson v. Callahan, 129 S. Ct. 808, 815, 818 (2009)

(explaining that government officials are entitled to qualified immunity if their

conduct does not violate a clearly established federal statutory or constitutional

right, and holding that courts have discretion to decide which of the two prongs of

the qualified immunity analysis should be addressed first in light of the

circumstances of the case).

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The district court properly dismissed the state law claims because Clarke’s

government tort claim did not include facts concerning the basis for his claim and

thus failed to substantially comply with the California Tort Claims Act. See

Nguyen v. L.A. County Harbor/UCLA Med. Ctr., 10 Cal. Rptr. 2d 709, 712 (Cal.

Ct. App. 1992) (explaining that the purpose of the Act is to provide the public

entity with sufficient information to allow it to investigate and evaluate the claim

to determine whether to settle the claim without the cost of litigation).

The district court did not abuse its discretion by denying leave to amend

because Clarke had amended the complaint three times and pointed to no

additional facts that could cure the deficiencies. See Metzler Inv. GMBH v.

Corinthian Colleges, Inc., 540 F.3d 1049, 1072 (9th Cir. 2008) (“[T]he district

court’s discretion to deny leave to amend is particularly broad where plaintiff has

previously amended the complaint.” (internal quotation marks and citation

omitted)).

The district court did not abuse its discretion by denying Clarke’s motion for

reconsideration. See Sch. Dist. No. 1J, 5 F.3d at 1263 (“[T]he failure to file

documents in an original motion or opposition does not turn the late filed

documents into ‘newly discovered evidence’”).

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Clarke forfeited his right to challenge the timeliness of defendants’ removal

of this action by failing to object in the district court. See Fristoe v. Reynolds

Metals Co., 615 F.2d 1209, 1212 (9th Cir. 1980) (per curiam).

Clarke’s remaining contentions are unpersuasive.

AFFIRMED.

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