Renard Truman Polk v. Mary K. Holthus;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RENARD TRUMAN POLK,
Plaintiff - Appellant,
v.
MARY K. HOLTHUS; et al.,
Defendants - Appellees.
No. 09-16948
D.C. No. 3:08-cv-00134-LRH-
VPC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted April 7, 2015**
Before: FISHER, TALLMAN, and NGUYEN, Circuit Judges.
Nevada state prisoner Renard Truman Polk appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging various
constitutional claims in connection with his state court criminal proceedings. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo. Resnick v. Hayes,
FILED
APR 16 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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213 F.3d 443, 447 (9th Cir. 2000) (dismissal under 28 U.S.C. § 1915(A)); Barren
v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order) (dismissal under 28
U.S.C. § 1915(e)). We affirm.
The district court properly dismissed Polk’s claims against state agencies
and against various defendants in their official capacities because those claims are
barred by the Eleventh Amendment. See Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984) (“It is clear . . . that in the absence of consent
a suit in which the State or one of its agencies or departments is named as the
defendant is proscribed by the Eleventh Amendment.”).
The district court properly dismissed Polk’s claims against various state
court defendants on the basis of immunity. See Mullis v. U.S. Bankr. Court, 828
F.2d 1385, 1390 (9th Cir. 1987) (court clerks have absolute quasi-judicial
immunity from a § 1983 action for damages when they perform tasks integral to
the judicial process); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en
banc) (judges are “absolutely immune from damage liability for acts performed in
their official capacities”); Demoran v. Witt, 781 F.2d 155, 158 (9th Cir. 1986)
(“[P]robation officers preparing presentencing reports for state court judges are
entitled to absolute judicial immunity from personal damage actions brought under
section 1983.”); Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (prosecutors have
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absolute immunity under § 1983 for “initiating a prosecution and . . . presenting the
State’s case”).
The district court properly dismissed Polk’s claims related to his state
criminal prosecution as barred by Heck v. Humphrey, 512 U.S. 477 (1994),
because success on those claims would necessarily demonstrate the invalidity of
his conviction. See id. at 486-87.
The district court properly dismissed Polk’s access-to-courts claim because
Polk failed to allege actual injury. See Lewis v. Casey, 518 U.S. 343, 348-49
(1996) (setting forth actual injury requirement).
The district court did not abuse its discretion in denying Polk’s motion to
appoint counsel because Polk did not establish exceptional circumstances. See
Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting forth standard of
review and factors for appointment of counsel).
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) (per curiam).
We reject Polk’s contentions that the district court judge demonstrated bias
and that defendants should have filed an answer to the complaint.
AFFIRMED.
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