NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RISCHELE FORTHOFFER,

Plaintiff

- Appellant,

v.

SHANNON R. FORE; TRINA M. HOLT,

Defendants

- Appellees,

and

BRITTANY DUNLOP,

Defendant,

v.

DAVID FORTHOFFER,

Movant

- Appellant. No. 19

- 35083

D.C. No. 3:17

- cv

- 00235

- TMB

MEMORANDUM *

Appeal from the United States District Court

for the District of Alaska Timothy M. Burgess, Chief District Judge, Presiding

Submitted May 4, 2020 * *

* 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

MAY 6 2020

MOLLY C. DWYER, CLERK

U.S. CO URT OF APPEALS2 19

- 35083

Before: SCHROEDER, CANBY, and TROTT, Circuit Judges.

Rischele Forthoffer appeals pro se from the district court’s Federal Rule of

Civil Procedure 12(b)(6) dismissal of her 42 U.S.C. § 1983 action alleging a

violatio n of her Fourth Amendment rights by Defendants Shannon Fore and Trina

Holt

. 1 We have jurisdiction under 28 U.S.C. § 1291. We review de novo the

dismissal of her complaint and denial of her husband, David Forthoffer’s, motion

to intervene under Federal R ule of Civil Procedure 24(a)(2)

. Lacey v. Maricopa

C oun ty , 693 F.3d 896, 911 (9th Cir. 2012) (en banc) ; Canatella v. California , 404

F.3d 1106, 1112 (9th Cir. 2005) . We review denial of Plaintiff’s motion for leave

to amend for abuse of discretion. Cafa sso, U.S. ex rel. v. Gen. Dynamics C4 Sys.,

Inc. , 637 F.3d 1047, 1058 (9th Cir. 2011)

. We affirm and remand with

instructions.

The district court properly dismissed Plaintiff’s § 1983 claims for monetary

damages because they “ necessarily imply the invalidity of [her prior] conviction”

for attempted sexual abuse of a minor and are therefore barred by Heck v.

Humphrey

, 512 U.S. 477, 486

– 87 (1994)

. Plaintiff’s allegations against both

Defendants are not “distinct temporally or sp atially from the factual basis for [her]

conviction”

. Beets v. C

ount y of Los Angeles , 669 F.3d 1038, 1042 (9th Cir. 2012).

1 Plaintiff does not appeal the dismissal of her claims against Brittany Dunlop.3 19

- 35083

Plaintiff’s second motion for leave to amend was futile and properly denied.

See McQuillion v. Schwarzenegger , 369 F.3d 1091, 109 9 (9th Cir. 2004)

(amendment futile where “ plaintiffs could not state cognizable damages claims

consistent with Heck

”). Denial was also proper as to David Forthoffer’s motion to

intervene

. T his Circuit has not recognized loss of consortium as a standalone

cause of action under federal law. Getz v. Boeing Co. , 654 F.3d 852, 859 (9th Cir.

2011) (“ loss of consortium do [es] not arise under federal law ”); Arakaki v.

Cayetano , 324 F.3d 1078, 1083 (9th Cir. 2003) (where Plaintiff’s case is no longer

proceeding on a particular claim, “intervention is inappropriate as a matter of

right”).

Dismissal should be without prejudice, however, so that Plaintiff can

“reassert [her] claims if [s]he ever succee ds in invalidating [her] conviction.”

Trimble v. City of Santa Rosa , 49 F.3d 583, 585 (9th Cir. 1995). We therefore

remand with instructions t o the district court to enter judgment without prejudice

as to Plaintiff’s claims against Defendant Fore.

AFFI RMED; REMANDED with instructions

.