“[A] complaint, containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or in fact [.]”
How later courts described this case
- “[A] complaint, containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or in fact [.]”
- setting forth standard of review
- “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’”
- although pro se pleadings are construed liberally, a plaintiff must allege facts sufficient to state a plausible claim
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION FILED
SEP 16 2020
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CECILE ANDREA BROWN, No. 20-35651
Plaintiff-Appellant, D.C. No. 3:20-cv-05640-RSM
v.
MEMORANDUM*
UNITED STATES OF AMERICA, Board of
Veteran Appeals,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Submitted September 8, 2020**
Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.
Cecile Andrea Brown appeals pro se from the district court’s order
dismissing her Federal Tort Claims Act (“FTCA”) action against the Board of
Veterans Appeals alleging tort claims related to her late father’s disability award.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal
*
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. § 1915(e)(2)(B). Barren v. Harrington, 152 F.3d 1193, 1194 (9th
Cir. 1998) (order). We affirm.
The district court properly dismissed Brown’s action because Brown failed
to allege facts sufficient to state a claim and her request for damages was frivolous.
See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se
pleadings are construed liberally, a plaintiff must allege facts sufficient to state a
plausible claim); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A pleading that
offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action will not do.’”) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)); see also Nietzke v. Williams, 490 U.S. 319, 325 (1989) (“[A] complaint,
containing as it does both factual allegations and legal conclusions, is frivolous
where it lacks an arguable basis either in law or in fact [.]”).
The district court properly concluded that Brown failed to establish that
venue was proper in the Western District of Washington. See 28 U.S.C. § 1402
(venue provisions for FTCA actions).
The district court did not abuse its discretion in denying Brown’s motion for
reconsideration because Brown failed to establish any basis for relief under Local
Civil Rule 7(h)(1). See W.D. Wash. R. 7(h)(1) (explaining that reconsideration
motions will be denied absent “a showing of manifest error in the prior ruling or a
showing of new facts or legal authority which could not have been brought to its
2 20-35651
attention earlier with reasonable diligence”); Bias v. Moynihan, 508 F.3d 1212,
1223 (9th Cir. 2007) (setting forth standard of review).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
We do not consider documents not presented to the district court. See
United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).
All pending motions are denied.
AFFIRMED.
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