# Daniel Tanner v. Anita Phillips

> Court of Appeals for the Ninth Circuit · October 4, 2016 · 669 F. App'x 444

URL: https://www.frixlaw.com/law-library/cases/4079549

## Case

- **Full name:** Daniel J. TANNER, DBA Tannerite Explosives, a Sole Proprietorship, Plaintiff-Appellant, v. Anita PHILLIPS; State of Oregon, Office of the Fire Marshall, Defendants-Appellees
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** October 4, 2016
- **Citations:** 669 F. App'x 444
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Tashima, Silverman, Smith
- **Nature of suit:** Civil
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 4 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

DANIEL J. TANNER, DBA Tannerite No. 14-35983
Explosives, a sole propertiership,
D.C. No. 6:14-cv-01008-AA
Plaintiff-Appellant,

v. MEMORANDUM*

ANITA PHILLIPS; STATE OF OREGON,
Office of the Fire Marshall,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding

Submitted September 27, 2016**

Before: TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.

Daniel J. Tanner appeals from the district court’s judgment dismissing his 42

U.S.C. § 1983 action alleging federal and state law claims arising from defendants’

denial of Tanner’s application for a special effects permit. We have jurisdiction

*
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).
under 28 U.S.C. § 1291. We review de novo a dismissal for failure to state a claim

under Federal Rule of Civil Procedure 12(b)(6). Hebbe v. Pliler, 627 F.3d 338,

341 (9th Cir. 2010). We affirm.

The district court properly dismissed Tanner’s state law claim for reckless

interference with economic activity because Tanner failed to comply with the

Oregon Tort Claims Act’s mandatory notice provisions. See Or. Rev. Stat.

§ 30.275(1), 2(b) (requiring notice of claim within 180 days after the alleged loss

or injury for any “action arising from any act or omission of a public body or an

officer, employee, or agent of a public body”).

The district court properly dismissed Tanner’s federal claim against the State

of Oregon and defendant Phillips in her official capacity on the basis of Eleventh

Amendment immunity. See Krainski v. Nev. ex. rel. Bd. of Regents of Nev. Sys. of

Higher Educ., 616 F.3d 963, 967 (9th Cir. 2010) (the Eleventh Amendment bars

suits against the State, its agencies, and state officials sued in their official

capacities).

The district court properly dismissed Tanner’s federal claim against Phillips

in her individual capacity because Tanner failed to raise a genuine dispute of

material fact as to whether Phillips’ conduct violated a clearly established right.

2 14-35983
See Pearson v. Callahan, 555 U.S. 223, 232 (2009) (defendant is entitled to

qualified immunity unless the conduct at issue violated a clearly established

constitutional right).

We do not consider issues not specifically and distinctly raised and argued in

the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n. 2 (9th Cir. 2009).

Tanner’s motion to stay proceedings, filed on July 17, 2015, is denied.

AFFIRMED.

3 14-35983

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4079549. Public record. Not legal advice.