                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 18 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JEANNE MUNDOGO MANUNGA,                         No.    16-56836

                Plaintiff-Appellant,            D.C. No.
                                                2:14-cv-09093-AG-KES
 v.

LOUIS, Officer, Immigration and Customs         MEMORANDUM*
Enforcement, individually and in official
capacity; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                   Andrew J. Guilford, District Judge, Presiding

                       Submission Deferred October 5, 2018
                          Submitted February 27, 2020**
                              Pasadena, California

Before: SCHROEDER and NGUYEN, Circuit Judges, and SIMON,*** District
Judge.



      *
             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).
      ***
             The Honorable Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.
      Jeanne Manunga appeals pro se the district court’s judgment dismissing with

prejudice Manunga’s Fourth Amended Complaint alleging damages under the

Federal Tort Claims Act (“FCTA”) and Bivens v. Six Unknown Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971) (“Bivens”).

      Manunga alleged that, in 2013, while she was in immigration custody,

Immigration and Customs Enforcement officers assaulted her and then failed to

provide her with proper medical treatment. This is Manunga’s seventh action

seeking damages in connection with the assault, and her fourth against federal

defendants. Manunga voluntarily dismissed the prior six (including at least two

while she had retained counsel). The district court granted the government’s

motion to dismiss because it found that Manunga’s claims were barred by claim

preclusion. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      In the district court, Manunga opposed the government’s motion by arguing

that the United States was not a party to her prior cases, and that the government’s

relationship with its employee, defendant Louis, was not sufficiently aligned to

create privity. On appeal, Manunga appears to raise different arguments. First, she

argues that there is no “identity of claims” between her current FCTA claims, and

her previously dismissed Bivens claims. Next, she argues that the employees are

currently sued in their individual capacity, and so are not in privity with the same

employees previously sued in their official capacity. Manunga also raises a series


                                          2                                    16-56836
of arguments for the first time in her reply brief.

      Manunga’s arguments raised for the first time on appeal, or in the reply

brief, are waived. See, e.g., Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir.

2009) (per curiam) (observing that the court of appeals does not consider

arguments not specifically and distinctly raised in the opening brief, or issues or

arguments made for the first time on appeal); Smith v. Marsh, 194 F.3d 1045, 1052

(9th Cir. 1999) (noting that, as a general rule, this court does not consider

arguments raised for the first time on appeal; also, arguments not raised by a party

in its opening brief are deemed waived).

      Even if we were to consider Manunga’s arguments on the merits, we would

nonetheless affirm. There is a sufficiently close relationship between the claims in

the current suit and Manunga’s prior actions, because all share the same common

nucleus of operative facts – namely, the alleged attack on Manunga, and the

alleged failure to provide medical care. See Mpoyo v. Litton Electro-Optical Sys.,

430 F.3d 985, 987−88 (9th Cir. 2005) (explaining this court’s transaction test used

to determine whether two suits share a common nucleus of operative fact).

Moreover, the employees were previously sued in their individual capacities,

because the prior suits sought money damages from the employees, a hallmark that

each was sued in his or her individual capacity. See Vaccaro v. Dobre, 81 F.3d

854, 856 (9th Cir. 1996) (explaining that a Bivens action is, by definition, against


                                           3                                    16-56836
defendants in their individual capacity).

      The district court properly applied claim preclusion to dismiss Manunga’s

action. Additionally, the district court did not abuse its discretion in denying

Manunga leave to amend, because the preclusion bar means that any attempt to

amend would have been futile. See Curry v. Yelp, Inc., 875 F.3d 1219, 1224 (9th

Cir. 2017).

      Manunga’s motion to withdraw her pro per filing (Docket No. 86) is

granted. Manunga’s motion requesting the production of evidence before

settlement (Docket No. 80) has been withdrawn.

      The judgment of the district court is AFFIRMED.




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