NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL J. TANNER, DBA Tannerite 

Explosives, a sole propertiership,

Plaintiff-Appellant,

 v.

ANITA PHILLIPS; STATE OF OREGON, 

Office of the Fire Marshall,

Defendants-Appellees.

No. 14-35983

D.C. No. 6:14-cv-01008-AA

MEMORANDUM*

Appeal from the United States District Court

for the District of Oregon

Ann L. Aiken, District Judge, Presiding

Submitted September 27, 2016**

Before: TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.

Daniel J. Tanner appeals from the district court’s judgment dismissing his 42 

U.S.C. § 1983 action alleging federal and state law claims arising from defendants’

denial of Tanner’s application for a special effects permit. We have jurisdiction 

 

* 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

OCT 4 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

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under 28 U.S.C. § 1291. We review de novo a dismissal for failure to state a claim 

under Federal Rule of Civil Procedure 12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 

341 (9th Cir. 2010). We affirm.

The district court properly dismissed Tanner’s state law claim for reckless 

interference with economic activity because Tanner failed to comply with the 

Oregon Tort Claims Act’s mandatory notice provisions. See Or. Rev. Stat.

§ 30.275(1), 2(b) (requiring notice of claim within 180 days after the alleged loss 

or injury for any “action arising from any act or omission of a public body or an 

officer, employee, or agent of a public body”).

The district court properly dismissed Tanner’s federal claim against the State 

of Oregon and defendant Phillips in her official capacity on the basis of Eleventh 

Amendment immunity. See Krainski v. Nev. ex. rel. Bd. of Regents of Nev. Sys. of 

Higher Educ., 616 F.3d 963, 967 (9th Cir. 2010) (the Eleventh Amendment bars 

suits against the State, its agencies, and state officials sued in their official 

capacities).

The district court properly dismissed Tanner’s federal claim against Phillips 

in her individual capacity because Tanner failed to raise a genuine dispute of 

material fact as to whether Phillips’ conduct violated a clearly established right. 

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See Pearson v. Callahan, 555 U.S. 223, 232 (2009) (defendant is entitled to 

qualified immunity unless the conduct at issue violated a clearly established 

constitutional right).

We do not consider issues 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).

Tanner’s motion to stay proceedings, filed on July 17, 2015, is denied.

AFFIRMED.

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Post Judgment Form - Rev. 08/2013 1

United States Court of Appeals for the Ninth Circuit

Office of the Clerk

95 Seventh Street

San Francisco, CA 94103

Information Regarding Judgment and Post-Judgment Proceedings

Judgment

• This Court has filed and entered the attached judgment in your case.

Fed. R. App. P. 36. Please note the filed date on the attached 

decision because all of the dates described below run from that date, 

not from the date you receive this notice.

Mandate (Fed. R. App. P. 41; 9th Cir. R. 41-1 & -2)

• The mandate will issue 7 days after the expiration of the time for 

filing a petition for rehearing or 7 days from the denial of a petition 

for rehearing, unless the Court directs otherwise. To file a motion to 

stay the mandate, file it electronically via the appellate ECF system 

or, if you are a pro se litigant or an attorney with an exemption from 

using appellate ECF, file one original motion on paper.

Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1)

Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)

(1) A. Purpose (Panel Rehearing):

• A party should seek panel rehearing only if one or more of the following

grounds exist:

► A material point of fact or law was overlooked in the decision;

► A change in the law occurred after the case was submitted which 

appears to have been overlooked by the panel; or

► An apparent conflict with another decision of the Court was not 

addressed in the opinion.

• Do not file a petition for panel rehearing merely to reargue the case.

B. Purpose (Rehearing En Banc)

• A party should seek en banc rehearing only if one or more of the following 

grounds exist:

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Post Judgment Form - Rev. 08/2013 2

► Consideration by the full Court is necessary to secure or maintain 

uniformity of the Court’s decisions; or

► The proceeding involves a question of exceptional importance; or

► The opinion directly conflicts with an existing opinion by another 

court of appeals or the Supreme Court and substantially affects a 

rule of national application in which there is an overriding need for 

national uniformity.

(2) Deadlines for Filing:

• A petition for rehearing may be filed within 14 days after entry of 

judgment. Fed. R. App. P. 40(a)(1).

• If the United States or an agency or officer thereof is a party in a civil case, 

the time for filing a petition for rehearing is 45 days after entry of judgment. 

Fed. R. App. P. 40(a)(1).

• If the mandate has issued, the petition for rehearing should be 

accompanied by a motion to recall the mandate.

• See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the 

due date).

• An order to publish a previously unpublished memorandum disposition 

extends the time to file a petition for rehearing to 14 days after the date of 

the order of publication or, in all civil cases in which the United States or an

agency or officer thereof is a party, 45 days after the date of the order of 

publication. 9th Cir. R. 40-2.

(3) Statement of Counsel

• A petition should contain an introduction stating that, in counsel’s 

judgment, one or more of the situations described in the “purpose” section 

above exist. The points to be raised must be stated clearly.

(4) Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2))

• The petition shall not exceed 15 pages unless it complies with the 

alternative length limitations of 4,200 words or 390 lines of text.

• The petition must be accompanied by a copy of the panel’s decision being 

challenged.

• An answer, when ordered by the Court, shall comply with the same length 

limitations as the petition.

• If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a 

petition for panel rehearing or for rehearing en banc need not comply with 

Fed. R. App. P. 32.

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Post Judgment Form - Rev. 08/2013 3

• The petition or answer must be accompanied by a Certificate of Compliance

found at Form 11, available on our website at www.ca9.uscourts.gov under

Forms.

• You may file a petition electronically via the appellate ECF system. No paper copies are

required unless the Court orders otherwise. If you are a pro se litigant or an attorney

exempted from using the appellate ECF system, file one original petition on paper. No 

additional paper copies are required unless the Court orders otherwise.

Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1)

• The Bill of Costs must be filed within 14 days after entry of judgment.

• See Form 10 for additional information, available on our website at 

www.ca9.uscourts.gov under Forms.

Attorneys Fees

• Ninth Circuit Rule 39-1 describes the content and due dates for attorneys fees

applications.

• All relevant forms are available on our website at www.ca9.uscourts.gov under Forms 

or by telephoning (415) 355-7806.

Petition for a Writ of Certiorari

• Please refer to the Rules of the United States Supreme Court at

www.supremecourt.gov

Counsel Listing in Published Opinions

• Please check counsel listing on the attached decision.

• If there are any errors in a published opinion, please send a letter in writing

within 10 days to:

► Thomson Reuters; 610 Opperman Drive; PO Box 64526; St. Paul, MN 55164-

0526 (Attn: Jean Green, Senior Publications Coordinator);

► and electronically file a copy of the letter via the appellate ECF system by using

“File Correspondence to Court,” or if you are an attorney exempted from using

the appellate ECF system, mail the Court one copy of the letter.

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Form 10. Bill of Costs ................................................................................................................................(Rev. 12-1-09)

United States Court of Appeals for the Ninth Circuit

BILL OF COSTS

Note: If you wish to file a bill of costs, it MUST be submitted on this form and filed, with the clerk, with proof of 

service, within 14 days of the date of entry of judgment, and in accordance with 9th Circuit Rule 39-1. A 

late bill of costs must be accompanied by a motion showing good cause. Please refer to FRAP 39, 28 

U.S.C. § 1920, and 9th Circuit Rule 39-1 when preparing your bill of costs.

v. 9th Cir. No.

The Clerk is requested to tax the following costs against:

Cost Taxable 

under FRAP 39, 

28 U.S.C. § 1920, 

9th Cir. R. 39-1 

REQUESTED 

(Each Column Must Be Completed)

ALLOWED 

(To Be Completed by the Clerk)

No. of 

Docs.

Pages per 

Doc.

Cost per 

Page*

TOTAL 

COST

TOTAL 

COST

Pages per 

Doc.

No. of 

Docs.

Excerpt of Record

Opening Brief

Reply Brief

$

$

$

$

$

$

$ $

Other**

Answering Brief

$ $

$

$

$

$

$

$

$

$

$

$

TOTAL: TOTAL: $ $

* Costs per page: May not exceed .10 or actual cost, whichever is less. 9th Circuit Rule 39-1.

Cost per 

Page*

Any other requests must be accompanied by a statement explaining why the item(s) should be taxed

pursuant to 9th Circuit Rule 39-1. Additional items without such supporting statements will not be 

considered.

Attorneys' fees cannot be requested on this form.

** Other:

Continue to next page

This form is available as a fillable version at: 

http://cdn.ca9.uscourts.gov/datastore/uploads/forms/Form%2010%20-%20Bill%20of%20Costs.pdf.

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Form 10. Bill of Costs - Continued

I, , swear under penalty of perjury that the services for which costs are taxed 

were actually and necessarily performed, and that the requested costs were actually expended as listed. 

Signature

Date 

Name of Counsel:

Attorney for:

Date Costs are taxed in the amount of $

Clerk of Court

By: , Deputy Clerk

(To Be Completed by the Clerk)

("s/" plus attorney's name if submitted electronically)

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