NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 8 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JESS D. BRASUELL III, No. 22-55316

Plaintiff-Appellant, D.C. No. 2:19-cv-02320-PSG-PD v.

SAN LUIS OBISPO COUNTY JAIL; SAN MEMORANDUM*

LUIS OBISPO COUNTY SUPERIOR

COURT; SAN LUIS OBISPO COUNTY

SHERIFF'S DEPUTIES, Custody Division Deputies and Staff, official capacity; SAN

LUIS OBISPO COUNTY SHERIFF

DEPUTIES, BAILIFFS, Custody Division Deputies and Staff, official capacity;

SUPERIOR COURT CLERK OF SAN LUIS

OBISPO COUNTY, Court Clerks, official capacity; AMANDA GIBSON, (Nurse) Employee of Wellpath Health Care, official capacity; HENRICHSEN, San Luis Obispo County Sheriff, official capacity; UNKNOWN PARTIES, Bailiffs of Superior Court; UNKNOWN PARTIES, Court Clerks of San Luis Obispo; CORRECTIONAL OFFICERS, of San Luis Obispo County Jail;

AARON NIX; GEREMIA; JIM VOGE;

KATIE PORTER, Records Custodian;

CADENA; PINTOR; CLARK;

ARMSTRONG; KESSLER, Compliance officer; ROBERT CROUSE; CHRISTY

MULKERIN; WILLIE; SNIDER; JASON

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ROBERTS; AUGUST, Mental Health Worker; TORRES, Classification Officer;

RAU; M. GONZALES; HUSKY;

POORMAN; ORDONEZ; MORAN; DOES,

1 through 15, individual and official capacity; DOES, 1 to 20,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, District Judge, Presiding

Submitted July 8, 2024**

Before: O’SCANNLAIN, FERNANDEZ, and SILVERMAN, Circuit Judges.

Plaintiff Jess Brasuell, III, a California state inmate, appeals from the district

court’s dismissal of his prisoner civil rights action with prejudice. We review the

dismissal for an abuse of discretion. Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th

Cir. 2002); Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981).

We affirm.

Plaintiff has waived any challenge to the reasons given by the district court

for dismissing the Fourth Amended Complaint by not addressing those rulings in

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

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 decline to consider issues or allegations not specifically and distinctly raised in the

opening brief or in the district court. Id.

The district court did not abuse its discretion by dismissing this action with

prejudice, after giving plaintiff multiple opportunities to amend. The district court

considered the proper factors and reasonably concluded that further amendment

would be futile. As the district court noted, plaintiff failed to respond to the

motion to dismiss after receiving notice of the motion and repeatedly failed to

comply with the district court’s orders to file amended complaints that complied

with Federal Rule of Civil Procedure 8. See Chodos v. West Publ’g Co., 292 F.3d

992, 1003 (9th Cir. 2002) (noting that the district court’s discretion to deny leave

to amend is “particularly broad” when it has already allowed amendment) (internal

quotation marks omitted); Pagtalunan, 291 F.3d at 642 (setting forth the factors for

the court to consider before dismissing pursuant to Fed. R. Civ. P. 41(b) for failure

to comply with court orders); Nevijel, 651 F.2d at 674 (holding that a “verbose,

confusing and almost entirely conclusory” complaint violates Rule 8 and affirming

the dismissal of an amended complaint that “was equally as verbose, confusing and

conclusory as the initial complaint”); Fed. R. Civ. P. 8(a)(2) (requiring “a short and

plain statement of the claim”).

To the extent that plaintiff seeks damages for an invalid criminal conviction,

his claims are barred. See Heck v. Humphrey, 512 U.S. 477, 487 (1994) (if “a

3 judgment in favor of the plaintiff would necessarily imply the invalidity of his

conviction or sentence”, “the complaint must be dismissed unless the plaintiff can

demonstrate that the conviction or sentence has already been invalidated.”). To the

extent plaintiff seeks immediate release, his exclusive federal remedy lies in

habeas corpus. Id. at 481.

None of plaintiff’s conclusory, confusing allegations made on appeal

establish that he could comply with Rule 8 or state a constitutional claim.

Plaintiff’s motions to supplement the record or obtain discovery (Dkt. Entry

Nos. 17, 18, 35, 36) are DENIED. Plaintiff’s motion for an extension of time to

file a reply brief (Dkt. Entry No. 38) is DENIED as moot.

AFFIRMED.

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