                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                             JUN 29 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
VLADIK BYKOV,                                    No.   15-35929

              Plaintiff-Appellant,               D.C. No. 2:15-cv-00713-JCC

 v.
                                                 MEMORANDUM*
STEVEN G. ROSEN, and his marital
community; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                      for the Western District of Washington
                   John C. Coughenour, District Judge, Presiding

                             Submitted June 27, 2017**
                              San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.




      *
             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).
      Vladik Bykov appeals pro se from the district court’s judgment dismissing his

42 U.S.C. § 1983 action, which alleged federal and state law violations in connection

with the imposition and enforcement of probation conditions. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo the district court’s dismissal under Fed.

R. Civ. P. 12(b)(6). Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015). We affirm in

part, vacate in part, and remand.

                                           I

      The district court properly dismissed without leave to amend Bykov’s

constitutional right-to-medical-privacy claims for monetary damages against Judge

Rosen and Officer Rogers because they are entitled to judicial and quasi-judicial

immunity, respectively. Duvall v. County of Kitsap, 260 F.3d 1124, 1133 (9th Cir.

2001) (describing factors relevant to whether an act is judicial in nature and therefore

subject to judicial immunity).

                                           II

      The district court properly dismissed Bykov’s constitutional right-to-medical-

privacy claim against the City of Seattle because a municipality may not be held

vicariously liable for its employees’ alleged constitutional violations, and the amended

complaint fails to allege any facts showing that Seattle had a policy or custom that

caused Bykov’s alleged injury. Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 403


                                           2
(1997) (“[A] municipality may not be held liable under § 1983 solely because it

employs a tortfeasor,” and plaintiff must “identify a municipal policy or custom that

caused the plaintiff’s injury.” (citations and internal quotations marks omitted)).

                                          III

      The district court properly dismissed Bykov’s claims under Title II of the

Americans with Disabilities Act of 1990 (“ADA”) and the Washington Law Against

Discrimination (“WLAD”) because Bykov failed to allege facts sufficient to show any

discriminatory motivation for Judge Rosen’s and Officer Rogers’s actions. Thompson

v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (ADA claim requires establishing that

plaintiff was discriminated against due to plaintiff’s disability); Duvall, 260 F.3d at

1135 (WLAD claim requires establishing that plaintiff’s disability was a substantial

factor causing discrimination).

                                          IV

      The district court properly dismissed Bykov’s legal malpractice claims against

defendants Murphy and Naylor because Bykov failed to allege facts sufficient to state

plausible claims, and documents subject to judicial notice contradict Bykov’s

allegation that Murphy failed to inform Judge Rosen that Bykov signed the medical

records release form. Hizey v. Carpenter, 830 P.2d 646, 651–52 (Wash. 1992) (listing

elements of legal malpractice claim); Sprewell v. Golden State Warriors, 266 F.3d


                                           3
979, 988 (9th Cir. 2001) (when reviewing dismissal for failure to state a claim, the

court need not “accept as true allegations that contradict matters properly subject to

judicial notice”).

      However, in opposing the defendants’ motions to dismiss his claims, Bykov

alternatively requested leave to amend his complaint to cure any deficiencies. “We

are very cautious in approving a district court’s decision to deny pro se litigants leave

to amend,” Flowers v. First Hawaiian Bank, 295 F.3d 966, 976 (9th Cir. 2002), and

in this case the district court dismissed Bykov’s claims without considering whether

to grant Bykov leave to amend any claim dismissed without prejudice. Therefore, we

vacate the judgment with respect to the legal malpractice claims, the negligent hiring

and supervision claim, the constitutional right-to-medical-privacy claim against the

City of Seattle, and the discrimination claims brought under the ADA and the WLAD.

On remand, the district court shall consider whether Bykov should be given an

opportunity to amend these claims or whether amendment would be futile. Lucas v.

Dep’t of Corr., 66 F.3d 245, 248–49 (9th Cir. 1995) (“Unless it is absolutely clear that

no amendment can cure the defect, . . . a pro se litigant is entitled to notice of the

complaint’s deficiencies and an opportunity to amend prior to dismissal of the

action.”). In addition, the district court shall consider on remand whether Bykov

alleged plausible claims for relief under the First Amendment, the Fourth Amendment,


                                           4
and the Fourteenth Amendment (procedural due process and equal protection).

                                          V

      The district court did not abuse its discretion by taking judicial notice of the

Washington State court proceedings. Fed. R. Evid. 201(b)(2); United States v. Woods,

335 F.3d 993, 1000–01 (9th Cir. 2003) (setting forth standard of review); U.S. ex rel.

Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.

1992) (a court “may take notice of proceedings in other courts, both within and

without the federal judicial system, if those proceedings have a direct relation to

matters at issue” (citation omitted)).

      We do not consider arguments and allegations raised for the first time on

appeal. Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      Bykov’s motion for a waiver of PACER fees, filed on December 24, 2015, is

denied.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, VACATED in part, REMANDED.




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