                                                                            FILED
                            NOT FOR PUBLICATION                              AUG 04 2016

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


ARCHIBALD CUNNINGHAM,                            No. 14-15266

               Plaintiff - Appellant,            D.C. No. 3:13-cv-04627-WHO

 v.
                                                 MEMORANDUM*
MICHAEL COOMBS, sued in underlying
arbitration and court proceedings; et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                        for the Northern District of California
                 William Horsley Orrick III, District Judge, Presiding

                              Submitted July 26, 2016**

Before:        SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.

      Archibald Cunningham, an attorney, appeals pro se from the district court’s

judgment dismissing his 42 U.S.C. § 1983 action alleging federal and state law

claims arising out of arbitration and state court proceedings involving his property.


          *
             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).
We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal

under Federal Rule of Civil Procedure 12(b)(6). Kahle v. Gonzales, 487 F.3d 697,

699 (9th Cir. 2007). We may affirm on any ground supported by the record.

Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008).

We affirm.

      The district court properly dismissed the claims against Attorney General

Harris on the basis of Eleventh Amendment immunity. See Ass’n des Eleveurs de

Canards et d’Oies du Quebec v. Harris, 729 F.3d 937, 943 (9th Cir. 2013)

(discussing Eleventh Amendment immunity).

      The district court properly dismissed Cunningham’s claims against Judge

Cheng, and Justices Kline and Richman, on the basis of judicial immunity and

because they are not proper parties under § 1983. See Wolfe v. Strankman, 392

F.3d 358, 365 (9th Cir. 2004) (judges are not proper defendants in a § 1983 action

challenging a state law when acting as adjudicators, and “a judge acts as a neutral

adjudicator in determining whether a plaintiff is a vexatious litigant upon a motion

by a defendant, and in deciding whether to require the litigant to post a security

bond”); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc)

(discussing judicial immunity).

      The district court properly dismissed the claim against Chief Justice Cantil-


                                           2                                   14-15266
Sakauye because Cunningham failed to allege facts sufficient to allege a plausible

claim that, as applied, California’s vexatious litigant statute violated his

constitutional rights. See Wolfe v. George, 486 F.3d 1120 (9th Cir. 2007)

(upholding constitutionality of California vexatious litigant statute).

      Dismissal of the constitutional claims against defendants McKay, Coombs,

and Woods (the “Non-Judicial Defendants”) was proper as barred by the doctrine

of collateral estoppel. See First Nat’l Bank v. Russell (In re Russell), 76 F.3d 242,

244-45 (9th Cir. 1996) (explaining that California’s res judicata and collateral

estoppel principles apply where underlying judgment was rendered in state court,

and setting forth elements of collateral estoppel under California law).

      The district court properly dismissed Cunningham’s fraud claim against the

Non-Judicial Defendants as barred by the litigation privilege. See Graham-Sult v.

Clainos, 756 F.3d 724, 741-42 (9th Cir. 2014) (discussing California’s litigation

privilege).

      The district court properly dismissed Cunningham’s breach of contract claim

against the Non-Judicial Defendants as barred by the doctrine of res judicata. See

Fed’n of Hillside & Canyon Ass’ns v. City of Los Angeles, 24 Cal. Rptr. 3d 543,

557-58 (Ct. App. 2004) (elements of res judicata under California law).

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


                                            3                                  14-15266
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 Non-Judicial Defendants’ motion, filed August 5, 2015, and

Cunningham’s motion, filed June 1, 2016, are denied as unnecessary.

      AFFIRMED.




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