NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIAN EDWARD MALNES, 

Plaintiff-Appellant, 

 v. 

STATE OF ARIZONA; MICHELE 

REAGAN, 

Defendants-Appellees.

No. 16-16208 

D.C. No. 3:16-cv-08008-GMS 

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

G. Murray Snow, District Judge, Presiding

Submitted June 26, 2017**

Before: PAEZ, BEA, and MURGUIA, Circuit Judges.

Brian Edward Malnes appeals pro se from the district court’s judgment 

dismissing his 42 U.S.C. § 1983 action alleging a violation of his rights under the 

Fifteenth Amendment. We have jurisdiction under 28 U.S.C. § 1291. We review 

 

* 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). Accordingly, we deny 

Malnes’s request for oral argument, set forth in his reply brief.

FILED

JUN 30 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

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de novo the district court’s 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 Malnes’s Fifteenth Amendment claim

for damages against defendant Reagan in her official capacity, and for damages 

and injunctive relief against the State of Arizona, because the claim is barred by 

Eleventh Amendment immunity. See Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 

2003) (“The Eleventh Amendment erects a general bar against federal lawsuits 

brought against a state.”). We reject as without merit Malnes’s claim that 

defendants’ settlement offer waived this immunity. See Edelman v. Jordan, 415 

U.S. 651, 673 (1974) (“In deciding whether a State has waived its constitutional 

protection under the Eleventh Amendment, we will find waiver only where stated 

by the most express language or by such overwhelming implications from the text 

as (will) leave no room for any other reasonable construction.” (internal quotation 

marks omitted)).

The district court properly dismissed Malnes’s Fifteenth Amendment claim 

for prospective injunctive relief against defendant Reagan in her official capacity 

because Malnes failed to allege facts sufficient to establish that Arizona’s felon 

disenfranchisement statute reflects racial animus or discrimination, or deprives him 

of the right to vote due to his “previous condition of servitude.” U.S. Const. 

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amend. XV, § 1; Farrakhan v. Gregoire, 623 F.3d 990, 993 (9th Cir. 2010) (“Felon 

disenfranchisement laws have a long history in the United States . . . predat[ing] 

the Jim Crow era and, with a few notable exceptions, have not been adopted based 

on racial considerations.” (citations omitted)); see also U.S. Const. amend. XIII 

(“Neither slavery nor involuntary servitude, except as a punishment for crime 

whereof the party shall have been duly convicted, shall exist within the United 

States, or any place subject to their jurisdiction.” (emphasis added)).

The district court properly denied as moot Malnes’s pending motions after 

dismissing the action with prejudice.

Contrary to Malnes’s contentions, the district court was not required to hold 

a hearing and allow oral argument prior to ruling on Malnes’s motions. See Fed. 

R. Civ. P. 78(b); D. Ariz. Civ. L.R. 7.2(f) (“The Court may decide motions without 

oral argument.”).

The district court did not err in failing to recuse itself sua sponte because 

Malnes failed to establish extrajudicial bias or prejudice. See 28 U.S.C. § 455; 

Noli v. Comm’r, 860 F.2d 1521, 1527 (9th Cir. 1988) (“[I]f no motion is made to 

the judge . . . a party will bear a greater burden on appeal in demonstrating that the 

judge . . . [erred] in failing to grant recusal under section 455.” (alteration in 

original) (citation and internal quotation marks omitted)).

We do not consider matters not specifically and distinctly raised and argued 

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in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

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