Andrich v. Glynn

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MICHAEL DEUSCHEL, No. 24-3129 D.C. No. Plaintiff - Appellant, 3:23-cv-03458-MMC v. MEMORANDUM* CALIFORNIA HEALTH AND HUMAN SERVICES AGENCY; Doctor MARK GHALY, Defendants - Appellees. Appeal from the United States District Court for the Northern District of California Maxine M. Chesney, District Judge, Presiding Submitted May 23, 2025 ** Pasadena, California Before: WARDLAW and OWENS, Circuit Judges, and HINDERAKER, 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 John Charles Hinderaker, United States District Judge for the District of Arizona, sitting by designation.  Michael Deuschel appeals from the district court’s dismissal of his First Amended Complaint (FAC). The district court dismissed the FAC, with prejudice, for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) because the FAC did not comply with Federal Rule of Civil Procedure 8. We have jurisdiction under 28 U.S.C. § 1291. We reverse and remand. We review de novo the district court’s dismissal of the FAC pursuant to 28 U.S.C. § 1915(e) and dismissal under Rule 8. Hebrard v. Nofziger, 90 F.4th 1000, 1006 (9th Cir. 2024) (dismissal under 28 U.S.C. § 1915(e)(2)); In re Dominguez, 51 F.3d 1502, 1508 n.5 (9th Cir. 1995) (dismissal under Rule 8). We review for an abuse of discretion the district court’s dismissal of a complaint without leave to amend. United States v. United Healthcare Ins. Co., 848 F.3d 1161, 1172 (9th Cir. 2016). The district court did not err in dismissing the FAC pursuant to 28 U.S.C. § 1915(e)(2)(B) because the FAC did not comply with Rule 8. See Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058–59 (9th Cir. 2011) (collecting cases affirming dismissal without leave to amend under Rule 8(a) where the complaint is unnecessarily long, repetitive, or confusing). The FAC fails to specify what actions taken by each defendant caused injury in violation of which laws. With respect to dismissal without leave to amend, “court[s] consider[] five 2 24-3129 factors in assessing the propriety of leave to amend—bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint.” United States v. Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011) (citation omitted). As to the fourth factor, futility of amendment, we have explained that “[l]eave to amend is warranted if the deficiencies can be cured with additional allegations that are ‘consistent with the challenged pleading’ and that do not contradict the allegations in the original complaint.” Id. (quoting Reddy v. Litton Indus., Inc., 912 F.2d 291, 296–97 (9th Cir. 1990)). In dismissing the FAC without leave to amend, the district court failed to explicitly consider all the factors for dismissal without leave to amend. With respect to futility, the district court cited the standard set forth in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000)—that leave to amend should be granted unless a pleading “could not possibly be cured by the allegation of other facts”— but failed to identify any reasons for concluding that the FAC could not be cured with additional allegations. See DCD Programs v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (“If a district court believes the plaintiff is not able to state a claim, it should provide written findings explaining this. . . . [I]n the absence of written findings or a record which clearly indicates reasons for the district court’s denial, this court will reverse a denial of leave to amend.”). The district court’s 3 24-3129 observation that it was “unable to discern any attempt in the FAC to revise the complaint in such a way as to cure or even address the deficiencies identified in the Court’s prior screening order” does not suffice as consideration of futility becau

Case: 24-11021 Document: 47-1 Page: 1 Date Filed: 06/10/2025 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED June 10, 2025 No. 24-11021 Lyle W. Cayce ____________ Clerk Ruth Torres, Plaintiff—Appellant, versus Bonnie Lee Goldstein, In Official Capacity 44th District Court Judge Dallas; Raymond G. Wheless, In Official Capacity, Presiding Judge First Administrative Judicial Region; Robert D. Burns, In Official Capacity, Chief Justice, Fifth Court of Appeals-Dallas; Amanda L. Reichek, In Official Capacity, Chief Justice, Fifth Court of Appeals-Dallas; Ken Molberg, In Official Capacity, Chief Justice, Fifth Court of Appeals- Dallas; Dennise Garcia, In Official Capacity, Chief Justice, Fifth Court of Appeals-Dallas; Robbie Partida-Kipness, In Official Capacity, Justice Place 2 Fifth Court of Appeals-Dallas; Honorable Dale Tillery, In Official Capacity, 134th District Court Judge Dallas, Defendants—Appellees. ______________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 3:24-CV-1843 ______________________________ Case: 24-11021 Document: 47-1 Page: 2 Date Filed: 06/10/2025 No. 24-11021 Before Smith, Graves, and Engelhardt, Circuit Judges. Per Curiam: * Ruth Torres, proceeding pro se, filed a civil rights complaint against several members of the Texas judiciary seeking injunctive, declaratory, and monetary relief. Torres alleged that the defendants violated her constitu- tional rights by issuing improper rulings and orders in a lawsuit initiated against her in retaliation for being a whistleblower, as well as in related legal proceedings. The district court dismissed the complaint as frivolous and for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 915(e)(2)(B). Torres moves to proceed in forma pauperis (“IFP”) on appeal, which constitutes a challenge to the district court’s certification that any appeal would not be taken in good faith because Torres will not present a nonfrivolous appellate issue. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). As an initial matter, Torres does not present a nonfrivolous issue for appeal regarding her contention that the district court failed to conduct de novo review as demonstrated by the court’s failure separately to provide find- ings and conclusions for overruling her objections to the magistrate judge’s report and recommendation. Rather, the record reflects that in accepting the report and recommendation, the district court conducted the requisite de novo review. See Fed. R. Civ. P. 72(b)(3). In addition, the district court’s decision to consider sua sponte the applicability of the judicial immunity doctrine does not present a non- frivolous issue for appeal. See Boyd v Biggers, 31 F.3d 279, 284 (5th Cir. 1994). Further, Torres’s conclusory assertions, without more, that judicial immun- ity does not apply because the defendants’ actions were without jurisdiction _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. 2 Case: 24-11021 Document: 47-1 Page: 3 Date Filed: 06/10/2025 No. 24-11021 and they were disqualified “due to ultra-vires acts/or crime-fraud excep- tion,” does not arguably state a constitutional violation. See Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990). Rather, her allegations all stem from orders the defendants issued in litigation involving Torres. See Davis v. Tar- rant Cnty., 565 F.3d 214, 221-22 (5th Cir. 2009). Further, Torres does not challenge the district court’s conclusion that she could not bring a private criminal action against the defendants. Nor does she challenge the decision denying her leave to amend her complaint. Thus, these claims are deemed abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Torres also maintains that the district court abused its discretion in denying her motion for appointment of counsel. However, Torres’s numer- ous filings in the district court and this court indicate that she has the

USCA11 Case: 22-12354 Document: 41-1 Date Filed: 08/08/2025 Page: 1 of 48 [PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 22-12354 ____________________ AILEEN MULLIN, Plaintiff-Appellant, versus SECRETARY, U.S. DEPARTMENT OF VETERANS AFFAIRS, Defendant-Appellee. ____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:20-cv-02697-VMC-AEP ____________________ USCA11 Case: 22-12354 Document: 41-1 Date Filed: 08/08/2025 Page: 2 of 48 2 Opinion of the Court 22-12354 Before JORDAN, LAGOA, and TJOFLAT, Circuit Judges. PER CURIAM: Aileen Mullin sued the Department of Veterans Affairs, as- serting many claims under the Rehabilitation Act of 1973, 29 U.S.C. § 794. The claims were for disability discrimination, failure to ac- commodate, unlawful disclosure, and retaliation (and/or a retalia- tory hostile work environment). The district court granted sum- mary judgment for the Department on all the claims, and Ms. Mullin now appeals. Following a review of the record, and with the benefit of oral argument, we reverse and remand on the unlawful disclosure claim and affirm on the other claims. 1 I. BACKGROUND In reviewing the district court’s summary judgment order, we view the facts in the light most favorable to Ms. Mullin. See Taxinet Corp. v. Leon, 114 F.4th 1212, 1231 (11th Cir. 2024). Seen through that lens, the record reflects the following.2 A. Ms. Mullin began her employment with the Department of Veterans Affairs in February 2009. She remains employed by the 1 As to any issues not discussed in this opinion, we summarily affirm. 2 We include a fair number of dates in setting out the chronology of events because the dates in this case matter. USCA11 Case: 22-12354 Document: 41-1 Date Filed: 08/08/2025 Page: 3 of 48 22-12354 Opinion of the Court 3 Department as a Ratings Veterans Service Representative at the St. Petersburg Regional Office of the Veterans Benefits Administra- tion. In July 2010, Ms. Mullin began to experience respiratory is- sues at work. Believing that the building she worked in was causing the respiratory problems, she spoke with someone at the Depart- ment that month about what could be done to address what she believed to be issues with the building. According to Ms. Mullin, the Department did not do anything after she first raised her con- cerns, and she was told to file a claim for worker’s compensation. Ms. Mullin’s respiratory issues worsened over time. In De- cember 2011 she informed the Department that she was still having trouble with her breathing and asthma. She asked for an alternative work schedule to limit the time she spent in the building. She also sought relocation of her workstation to a different place in the building. The Department granted both requests. It limited the num- ber of days Ms. Mullin was required to be in the office and it changed her workstation. Although she had requested these ac- commodations, Ms. Mullin did not consider them effective because she continued to suffer from respiratory issues. In January 2012, Ms. Mullin informed the Department that her respiratory issues were continuing and remained severe. That same month, she met with human resources specialist Tammi Clarke and a union representative to discuss her ongoing health is- sues. Ms. Mullin does not remember whether she made any USCA11 Case: 22-12354 Document: 41-1 Date Filed: 08/08/2025 Page: 4 of 48 4 Opinion of the Court 22-12354 accommodation requests at this meeting, but she recalls that Ms. Clarke told her that her workstation would be moved from the sec- ond floor to the third floor. Ms. Mullin returned to work two days after this meeting and found that she had n