                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 30 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

BRIAN EDWARD MALNES,                            No. 16-16208

                Plaintiff-Appellant,            D.C. No. 3:16-cv-08008-GMS

 v.
                                                MEMORANDUM*
STATE OF ARIZONA; MICHELE
REAGAN,

                Defendants-Appellees.

                   Appeal from the United States District Court
                            for the District of Arizona
                    G. Murray Snow, District Judge, Presiding

                             Submitted June 26, 2017**

Before:      PAEZ, BEA, and MURGUIA, Circuit Judges.

      Brian Edward Malnes appeals pro se from the district court’s judgment

dismissing his 42 U.S.C. § 1983 action alleging a violation of his rights under the

Fifteenth Amendment. We have jurisdiction under 28 U.S.C. § 1291. We review



      *
             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). Accordingly, we deny
Malnes’s request for oral argument, set forth in his reply brief.
de novo the district court’s 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 Malnes’s Fifteenth Amendment claim

for damages against defendant Reagan in her official capacity, and for damages

and injunctive relief against the State of Arizona, because the claim is barred by

Eleventh Amendment immunity. See Porter v. Jones, 319 F.3d 483, 491 (9th Cir.

2003) (“The Eleventh Amendment erects a general bar against federal lawsuits

brought against a state.”). We reject as without merit Malnes’s claim that

defendants’ settlement offer waived this immunity. See Edelman v. Jordan, 415

U.S. 651, 673 (1974) (“In deciding whether a State has waived its constitutional

protection under the Eleventh Amendment, we will find waiver only where stated

by the most express language or by such overwhelming implications from the text

as (will) leave no room for any other reasonable construction.” (internal quotation

marks omitted)).

      The district court properly dismissed Malnes’s Fifteenth Amendment claim

for prospective injunctive relief against defendant Reagan in her official capacity

because Malnes failed to allege facts sufficient to establish that Arizona’s felon

disenfranchisement statute reflects racial animus or discrimination, or deprives him

of the right to vote due to his “previous condition of servitude.” U.S. Const.


                                          2                                      16-16208
amend. XV, § 1; Farrakhan v. Gregoire, 623 F.3d 990, 993 (9th Cir. 2010) (“Felon

disenfranchisement laws have a long history in the United States . . . predat[ing]

the Jim Crow era and, with a few notable exceptions, have not been adopted based

on racial considerations.” (citations omitted)); see also U.S. Const. amend. XIII

(“Neither slavery nor involuntary servitude, except as a punishment for crime

whereof the party shall have been duly convicted, shall exist within the United

States, or any place subject to their jurisdiction.” (emphasis added)).

      The district court properly denied as moot Malnes’s pending motions after

dismissing the action with prejudice.

      Contrary to Malnes’s contentions, the district court was not required to hold

a hearing and allow oral argument prior to ruling on Malnes’s motions. See Fed.

R. Civ. P. 78(b); D. Ariz. Civ. L.R. 7.2(f) (“The Court may decide motions without

oral argument.”).

      The district court did not err in failing to recuse itself sua sponte because

Malnes failed to establish extrajudicial bias or prejudice. See 28 U.S.C. § 455;

Noli v. Comm’r, 860 F.2d 1521, 1527 (9th Cir. 1988) (“[I]f no motion is made to

the judge . . . a party will bear a greater burden on appeal in demonstrating that the

judge . . . [erred] in failing to grant recusal under section 455.” (alteration in

original) (citation and internal quotation marks omitted)).

      We do not consider matters not specifically and distinctly raised and argued


                                            3                                        16-16208
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      AFFIRMED.




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