Greg Steven Elofson v. Stephanie Bivens;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREG STEVEN ELOFSON,
Plaintiff-Appellant,
v.
STEPHANIE BIVENS; et al.,
Defendants-Appellees.
No. 17-16538
D.C. No. 5:15-cv-05761-BLF
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Beth Labson Freeman, District Judge, Presiding
Submitted August 6, 2019**
Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.
Greg Steven Elofson appeals pro se the district court’s judgment dismissing
Elofson’s action alleging that defendants violated his constitutional rights under 42
U.S.C. § 1983, the Racketeer Influenced and Corrupt Organizations Act (“RICO”),
18 U.S.C. § 1961 et seq., and other federal and state laws in connection with the
* 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).
FILED
AUG 8 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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guardianship and conservatorship of his father and a related state-court action. We
have jurisdiction under 28 U.S.C. § 1291. We review the district court’s dismissal
de novo. Ranza v. Nike, Inc., 793 F.3d 1059, 1068 (9th Cir. 2015) (personal
jurisdiction); Porter v. Osborn, 546 F.3d 1131, 1136 (9th Cir. 2008) (qualified
immunity). 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 rejected Elofson’s argument that RICO confers
personal jurisdiction over Dougherty-Elofson, Bivens, Theut, and McCollum
because Elofson failed to allege facts showing “that there is no other district in
which a court will have personal jurisdiction over all of the alleged
coconspirators.” Butcher’s Union Local No. 498, United Food & Comm. Workers
v. SDC Inv., Inc., 788 F.2d 535, 538-39 (9th Cir. 1986); see 18 U.S.C. § 1965(b).
Dismissal of the claims against Scaringelli was proper because Elofson
failed to show any basis for the court to extend personal jurisdiction over him. See
Ranza, 793 F.3d at 1068 (personal jurisdiction comports with due process only if
the defendant has “minimum contacts with the forum state such that the
maintenance of the suit does not offend traditional notions of fair play and
substantial justice” (citation and internal quotation marks omitted)); Butcher’s
Union Local No. 498, 788 F.2d at 538-39.
The district court properly determined that Mudd was entitled to qualified

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immunity because Elofson failed to allege facts showing that Mudd violated his
clearly established constitutional rights. See Pearson v. Callahan, 555 U.S. 223,
232 (2009) (government officials are entitled to qualified immunity where there is
no violation of plaintiff’s constitutional right or the right at issue was not “clearly
established” at the time of the alleged violation); see also Porter, 546 F.3d at 1137
(“[O]nly official conduct that ‘shocks the conscience’ is cognizable as a due
process violation.” (citation omitted)).
In concluding that Elofson lacked standing to bring claims against Mudd on
his father’s behalf, the district court did not err in taking judicial notice of orders
filed by the Arizona probate court. See Lee v. City of Los Angeles, 250 F.3d 668,
689 (9th Cir. 2001) (“A court may take judicial notice of ‘matters of public record’
without converting a motion to dismiss into a motion for summary judgment.”).
The record does not support Elofson’s contention that the district court improperly
relied on Mudd’s declaration in dismissing the claims.
We reject Elofson’s contention that dismissal of the claims against Mudd
violated Elofson’s Seventh Amendment jury right.
The district court did not abuse its discretion in dismissing without leave to
amend because Elofson could not cure the deficiencies in his complaint. See Lopez
v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (leave to amend should be
given unless the deficiencies in the complaint cannot be cured by amendment).

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We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009)
(per curiam).
Scaringelli’s pending request for judicial notice of the Arizona probate court
docket (Docket Entry No. 49) is GRANTED.
AFFIRMED.

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