                            NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                         APR 24 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

BRIAN KENNER; KATHLEEN KENNER,                   No.    12-56358

                Plaintiffs-Appellants,           D.C. No. 3:11-cv-02520-BEN-BGS

 v.
                                                 MEMORANDUM*
UNITED STATES OF AMERICA; et al.,

                Defendants-Appellees.

                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                             Submitted April 11, 2017**

Before:      GOULD, CLIFTON, and HURWITZ, Circuit Judges.

      Brian and Kathleen Kenner appeal pro se from the district court’s judgment

dismissing their action alleging federal and state law claims relating to the Internal

Revenue Service’s collection actions. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo. Rundgren v. Wash. Mut. Bank, FA, 760 F.3d 1056,



      *
             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).
1059-60 (9th Cir. 2014) (subject matter jurisdiction); Hebbe v. Pliler, 627 F.3d

338, 341 (9th Cir. 2010) (dismissal under Fed. R. Civ. P. 12(b)(6)); Sadoski v.

Mosley, 435 F.3d 1076, 1077 n.1 (9th Cir. 2006) (judicial immunity). We affirm.

      The district court properly substituted the United States as a party for the

individual IRS employees because the Kenners did not adequately challenge the 28

U.S.C. § 2679(d) certification before the district court. See Green v. Hall, 8 F.3d

695, 698 (9th Cir. 1993) (the party challenging the Attorney General’s decision

regarding scope of employment certification bears the burden of presenting

evidence and disproving that decision by a preponderance of the evidence).

      The district court properly dismissed the claims against the United States for

lack of subject matter jurisdiction because the Kenners failed to exhaust their

administrative remedies. See Cadwalder v. United States, 45 F.3d 297, 300 (9th

Cir. 1995) (presenting an administrative claim is a jurisdictional prerequisite to

filing an action under the Federal Tort Claims Act).

      The district court properly dismissed the Kenners’ claims against Judge

Moskowitz and Judge Battaglia on the basis of judicial immunity because the

challenged actions were taken in their judicial capacity. See Ashelman v. Pope,

793 F.2d 1072, 1075 (9th Cir. 1986) (en banc) (judges are absolutely immune from

liability for acts performed in their official capacities); Moore v. Brewster, 96 F.3d

1240, 1243 (9th Cir. 1996) (judicial immunity extends to declaratory and other


                                          2                                    12-56358
equitable relief), superseded by statute on other grounds.

      The district court properly dismissed the Kenners’ claims against defendant

Capital One, N.A. because the Kenners failed to allege facts sufficient to state a

plausible claim for relief. See Hebbe, 627 F.3d at 341-42 (although pro se

pleadings are to be liberally construed, a plaintiff must present factual allegations

sufficient to state a plausible claim for relief); Doe v. State, 214 Cal. Rptr. 3d 391,

399-40 (Cal. Ct. App. 2017) (elements of a cause of action under the California

Bane Act).

      The district court did not abuse its discretion by dismissing the Kenners’

complaint without leave to amend because amendment would be futile. See

Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (dismissal of a pro se

complaint without leave to amend is proper “if it is absolutely clear that the

deficiencies of the complaint could not be cured by amendment” (citation and

internal quotation marks omitted)); Chappel v. Lab. Corp. of Am., 232 F.3d 719,

725 (9th Cir. 2000) (standard of review).

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

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

      The Kenners’ motion for judicial notice (Docket Entry No. 28) is denied.

      AFFIRMED.




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