                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 19 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DAVID ANDERSON, Lt. Col; et al.,                 No. 11-55169

              Plaintiffs - Appellants,           D.C. No. 8:10-cv-00031-JVS-
                                                 MLG
  v.

CHRISTOPHER COX, an individual; et               MEMORANDUM *
al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                     James V. Selna, District Judge, Presiding

                           Submitted December 4, 2012 **
                               Pasadena, California

Before: PREGERSON, NOONAN, and PAEZ, Circuit Judges.

       Plaintiffs-Appellants, shareholders of the de-registered public company

CMKM Diamonds, Inc. filed a First Amended Complaint asserting a takings and




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
due process claims under the Fifth Amendment, and a declaratory relief claim

against Defendants-Appellees, past and current SEC officials. Plaintiffs appeal the

district court’s grant of Defendants’ motion to dismiss Plaintiffs’ First Amended

Complaint with prejudice. Plaintiffs contend they have adequately pleaded claims

against Defendants in their individual capacities, and thus, do not appeal the

district court’s dismissal of Plaintiffs’ claims against Defendants in their official

capacities.

      We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo.

Mullis v. U.S. Bankr. Court for Dist. of Nevada, 828 F.2d 1385, 1388 (9th Cir.

1987). We affirm.

      Plaintiffs fail to state claims against Defendants in their individual capacities

for the following reasons. The district court properly dismissed Plaintiffs’ takings

and due process claims under the Fifth Amendment because Plaintiffs do not allege

facts giving rise to a sufficient property interest. See Peterson v. U.S. Dept. of

Interior, 899 F.2d 799, 807 (9th Cir. 1990) (“[T]he first step in both due process

and taking[s] analyses is to determine whether there is a property right that is

protected by the Constitution”); Broad v. Sealaska Corp., 85 F.3d 422, 430 (9th

Cir. 1996) (holding that shareholder plaintiffs did not have a sufficient proprietary

interest in corporate equity to state a takings claim).
       Plaintiffs’ individual capacity claims fail for additional reasons. Assuming a

Bivens action applies to a takings claim, Plaintiffs fail to state sufficient facts to

establish that each official violated Plaintiffs’ constitutional rights, as required for

a Bivens action. See Kwai Fun Wong v. United States, 373 F.3d 952, 959, 966 (9th

Cir. 2004) (holding that no Bivens action existed where plaintiff “fail[ed] to

identify what role, if any, each individual defendant had in [the misconduct]”).

Defendants are also entitled to qualified immunity because the right that Plaintiffs

seek to protect was not clearly established at the time of the alleged misconduct.

Id. at 976 (concluding that right was not clearly established because the Ninth

Circuit and Supreme Court had never squarely addressed the alleged right).

       Plaintiffs abandoned their declaratory relief claim on appeal by failing to

challenge the district court’s dismissal of this claim in their brief. Fogel v. Collins,

531 F.3d 824, 829 n.1 (9th Cir. 2008). Besides, Plaintiffs’ declaratory relief claim

was based on their Fifth Amendment claims and suffers from the same defects.

See Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1044 (9th Cir.

2010) (dismissing declaratory relief claims based on dismissed claims).

       AFFIRMED.
