                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        DEC 21 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ARISTEA HUPP; PAUL HUPP,                        No. 16-56245

                Plaintiffs-Appellants,          D.C. No. 5:16-cv-00370-VAP-SP

 v.
                                                MEMORANDUM*
SOLERA OAK VALLEY GREENS
ASSOCIATION; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                   Virginia A. Phillips, Chief Judge, Presiding

                          Submitted December 18, 2017**

Before:      WALLACE, SILVERMAN, and BYBEE, Circuit Judges.

      Aristea Hupp and Paul Hupp appeal pro se from the district court’s judgment

dismissing their action alleging federal and state law claims arising from the state

court’s issuance and application of a vexatious litigant order against Paul Hupp.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Dexter v.


      *
             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).
Colvin, 731 F.3d 977, 980 (9th Cir. 2013). We affirm.

      The district court properly dismissed the Hupps’ 42 U.S.C. § 1983 claims

against the private actor defendants because the Hupps failed to allege facts

sufficient to show that these defendants acted under color of state law. See Price v.

Hawaii, 939 F.2d 702, 707-09 (9th Cir. 1991) (noting that private parties generally

do not act under the color of state law and describing instances in which a private

actor’s conduct amounts to state action for purposes of § 1983).

      The district court properly dismissed the Hupps’ 42 U.S.C. § 1983 claims

against defendant Huntsman arising from Huntsman’s conduct during the Hupps’

prior state court action because the Hupps failed to allege sufficient facts to show a

constitutional violation occurred. See Lopez v. Dep’t of Health Servs., 939 F.2d

881, 883 (9th Cir. 1991) (setting forth elements of a § 1983 claim).

      To the extent that the Hupps seek damages against defendant Judge Molloy

for his alleged unconstitutional conduct, the district court properly concluded that

Judge Molloy is immune from a suit for damages. See Ashelman v. Pope, 793 F.2d

1072, 1075 (9th Cir. 1986) (judges are absolutely immune from damage liability

for acts performed in their official capacity).

      The district court properly dismissed the Hupps’ claims for injunctive relief

against defendant Judges Molloy, Riemer, and Webster because the Hupps failed




                                           2                                    16-56245
to allege that “a declaratory decree was violated or declaratory relief was

unavailable.” 42 U.S.C. § 1983.

      The district court properly dismissed the Hupps’ claims for declaratory relief

against Judges Molloy, Riemer, and Webster as barred by the Eleventh

Amendment. See Green v. Mansour, 474 U.S. 64, 67-69 (1985) (distinguishing

claims for prospective and retrospective relief and explaining that claims for

retrospective relief are barred by the Eleventh Amendment).

      The district court properly dismissed the Hupps’ claim challenging the

constitutionality of California’s vexatious litigant statute as barred by the Rooker-

Feldman doctrine because this claim is “inextricably intertwined” with the state

court’s vexatious litigant order entered against Paul Hupp. See Doe & Assocs. Law

Offices v. Napolitano, 252 F.3d 1026, 1029-30 (9th Cir. 2001) (a constitutional

challenge is barred under the Rooker-Feldman doctrine if it is inextricably

intertwined with a state court judgment and the district court could not rule in favor

of the plaintiff “without holding that the state court had erred”).

      The district court did not abuse its discretion in denying the Hupps’ motion

seeking disqualification of the district judge and magistrate judge because the

Hupps failed to establish any grounds for such relief. See United States v.

Johnson, 610 F.3d 1138, 1147 (9th Cir. 2010) (setting forth standard of review and

grounds for recusal).


                                           3                                     16-56245
      We lack jurisdiction to consider the district court’s order declaring the

Hupps to be vexatious litigants because the Hupps failed to file an amended or

separate notice of appeal. See Whitaker v. Garcetti, 486 F.3d 572, 585

(9th Cir. 2007).

      We reject as without merit the Hupps’ due process contention regarding the

assignment of particular judges to pro se cases.

      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).

      The Hupps’ requests for judicial notice (Docket Entry Nos. 14 and 45) are

denied.

      AFFIRMED.




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