NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARISTEA HUPP; PAUL HUPP, 

Plaintiffs-Appellants, 

 v. 

SOLERA OAK VALLEY GREENS 

ASSOCIATION; et al., 

Defendants-Appellees.

No. 16-56245 

D.C. No. 5:16-cv-00370-VAP-SP 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Virginia A. Phillips, Chief Judge, Presiding

Submitted December 18, 2017**

Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.

Aristea Hupp and Paul Hupp appeal pro se from the district court’s judgment 

dismissing their action alleging federal and state law claims arising from the state 

court’s issuance and application of a vexatious litigant order against Paul Hupp. 

We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Dexter v. 

 

* 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

DEC 21 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
 2 16-56245 

Colvin, 731 F.3d 977, 980 (9th Cir. 2013). We affirm.

The district court properly dismissed the Hupps’ 42 U.S.C. § 1983 claims 

against the private actor defendants because the Hupps failed to allege facts 

sufficient to show that these defendants acted under color of state law. See Price v. 

Hawaii, 939 F.2d 702, 707-09 (9th Cir. 1991) (noting that private parties generally 

do not act under the color of state law and describing instances in which a private 

actor’s conduct amounts to state action for purposes of § 1983). 

The district court properly dismissed the Hupps’ 42 U.S.C. § 1983 claims 

against defendant Huntsman arising from Huntsman’s conduct during the Hupps’ 

prior state court action because the Hupps failed to allege sufficient facts to show a 

constitutional violation occurred. See Lopez v. Dep’t of Health Servs., 939 F.2d 

881, 883 (9th Cir. 1991) (setting forth elements of a § 1983 claim).

To the extent that the Hupps seek damages against defendant Judge Molloy 

for his alleged unconstitutional conduct, the district court properly concluded that 

Judge Molloy is immune from a suit for damages. See Ashelman v. Pope, 793 F.2d 

1072, 1075 (9th Cir. 1986) (judges are absolutely immune from damage liability 

for acts performed in their official capacity).

The district court properly dismissed the Hupps’ claims for injunctive relief 

against defendant Judges Molloy, Riemer, and Webster because the Hupps failed 
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to allege that “a declaratory decree was violated or declaratory relief was 

unavailable.” 42 U.S.C. § 1983. 

The district court properly dismissed the Hupps’ claims for declaratory relief 

against Judges Molloy, Riemer, and Webster as barred by the Eleventh 

Amendment. See Green v. Mansour, 474 U.S. 64, 67-69 (1985) (distinguishing 

claims for prospective and retrospective relief and explaining that claims for 

retrospective relief are barred by the Eleventh Amendment).

The district court properly dismissed the Hupps’ claim challenging the 

constitutionality of California’s vexatious litigant statute as barred by the RookerFeldman doctrine because this claim is “inextricably intertwined” with the state 

court’s vexatious litigant order entered against Paul Hupp. See Doe & Assocs. Law 

Offices v. Napolitano, 252 F.3d 1026, 1029-30 (9th Cir. 2001) (a constitutional 

challenge is barred under the Rooker-Feldman doctrine if it is inextricably 

intertwined with a state court judgment and the district court could not rule in favor 

of the plaintiff “without holding that the state court had erred”).

The district court did not abuse its discretion in denying the Hupps’ motion 

seeking disqualification of the district judge and magistrate judge because the 

Hupps failed to establish any grounds for such relief. See United States v. 

Johnson, 610 F.3d 1138, 1147 (9th Cir. 2010) (setting forth standard of review and 

grounds for recusal).
 4 16-56245 

We lack jurisdiction to consider the district court’s order declaring the 

Hupps to be vexatious litigants because the Hupps failed to file an amended or 

separate notice of appeal. See Whitaker v. Garcetti, 486 F.3d 572, 585 

(9th Cir. 2007).

We reject as without merit the Hupps’ due process contention regarding the 

assignment of particular judges to pro se cases. 

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).

The Hupps’ requests for judicial notice (Docket Entry Nos. 14 and 45) are 

denied. 

AFFIRMED.