NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAN VAN DUSEN,

Plaintiff-Appellant,

 v.

CITY OF OAKLAND; et al.,

Defendants-Appellees.

No. 15-15828

D.C. No. 3:13-cv-05023-HSG

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Haywood S. Gilliam, Jr., District Judge, Presiding

Submitted February 14, 2017**

Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.

Jan Van Dusen, an attorney, appeals pro se from the district court’s 

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

claims related to an investigation, prosecution, and state court conviction for 

animal cruelty. We have jurisdiction under 28 U.S.C. § 1291. We review de novo 

 

* 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

FEB 27 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
 2 15-15828 

a dismissal under Fed. R. Civ. P. 12(b)(6) and on the basis of Heck v. Humphrey, 

512 U.S. 477 (1994). Beets v. County of Los Angeles, 669 F.3d 1038, 1041 (9th 

Cir. 2012). We may affirm on any basis supported by the record, Thompson v. 

Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008), and we affirm.

The district court properly dismissed Van Dusen’s § 1983 claims for 

conspiracy, unreasonable seizure, and illegal seizure relating to the seizure of cats 

from her home as Heck-barred because success on these claims would necessarily 

imply the invalidity of her conviction, and Van Dusen failed to allege that her 

conviction has been invalidated. See Heck, 512 U.S. at 487 (§ 1983 action that 

necessarily implies the invalidity of a plaintiff’s conviction must be dismissed 

unless the conviction has been invalidated). 

Dismissal of Van Dusen’s unreasonable seizure of medication claim was 

proper because it is barred by the doctrine of issue preclusion. See Ayers v. City of 

Richmond, 895 F.2d 1267, 1270-72 (9th Cir. 1990) (applying California law to 

give preclusive effect to Fourth Amendment determinations made during a 

suppression hearing in an underlying criminal action). 

The district court properly dismissed Van Dusen’s § 1983 claims against 

defendants who worked in non-profit organizations because Van Dusen failed to 

allege facts sufficient to show that they acted under color of state law. See Price v. 
 3 15-15828 

State of Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991) (private parties do not 

generally act under color of state law for § 1983 purposes).

The district court did not abuse its discretion by denying Van Dusen leave to 

amend her complaint because any further amendment would have been futile. 

See Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) 

(setting forth standard of review; “[t]he district court’s discretion to deny leave to 

amend is particularly broad where plaintiff has previously amended the 

complaint”); see also Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 

2000) (a district court acts within its discretion to deny leave to amend when 

amendment would be futile).

The district court did not abuse its discretion by declining to exercise 

supplemental jurisdiction over the Van Dusen’s state law claims after dismissing 

her federal claims. See Ove v. Gwinn, 264 F.3d 817, 821 (9th Cir. 2001) (setting 

forth standard of review; “[a] court may decline to exercise supplemental 

jurisdiction over related state-law claims once it has dismissed all claims over 

which it has original jurisdiction” (citation and internal quotation marks omitted)); 

see also 28 U.S.C. § 1367(d) (tolling state statutes of limitations for state claims 

dismissed under supplemental jurisdiction statute “while the claim is pending [in 

federal court] and for a period of 30 days after it is dismissed unless State law 

provides for a longer tolling period”).
 4 15-15828 

The district court did not abuse its discretion by denying Van Dusen’s 

recusal request because Van Dusen did not demonstrate any ground for recusal. 

See United States v. Johnson, 610 F.3d 1138, 1147 (9th Cir. 2010) (setting forth 

standard of review and grounds for recusal); see also Liteky v. United States, 510 

U.S. 540, 555 (1994) (“[J]udicial rulings alone almost never constitute a valid basis 

for a bias or partiality motion.”).

We reject as without merit Van Dusen’s contentions that the district court 

improperly issued an order to show cause and failed to control its docket by 

allowing defendants to file separate motions to dismiss. 

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). 

We do not consider documents not presented to the district court. See 

United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).

All pending motions and requests are denied. 

AFFIRMED.