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`NOT FOR PUBLICATION
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`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`
`FILED
`
`
`OCT 18 2023
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`
`
`
`
` Plaintiff-Appellant,
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`TIMOTHY C. ROTE,
`
`
`
` v.
`
`
`COMMITTEE ON JUDICIAL CONDUCT
`AND DISABILITY OF THE JUDICIAL
`CONFERENCE OF THE UNITED
`STATES; et al.,
`
`
`
`
`
`
`No. 22-35261
`
`
`D.C. No. 3:19-cv-01988-SI
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`
`
`MEMORANDUM*
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`
`
`
`
`
`
` Defendants-Appellees.
`
`
`
`Before:
`
`
`Appeal from the United States District Court
`for the District of Oregon
`Michael H. Simon, District Judge, Presiding
`
`Submitted October 10, 2023**
`
`S.R. THOMAS, McKEOWN, and HURWITZ, Circuit Judges.
`
`Timothy C. Rote appeals pro se from the district court’s judgment
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`dismissing his action under 42 U.S.C. §§1983 and 1985(3), and Bivens v. Six
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`Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
`
`
`*
` This disposition is not appropriate for publication and is not precedent
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`except as provided by Ninth Circuit Rule 36-3.
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`** The panel unanimously concludes this case is suitable for decision
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`without oral argument. See Fed. R. App. P. 34(a)(2).
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`
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`
`
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`alleging constitutional claims. We have jurisdiction under 28 U.S.C. § 1291. We
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`review de novo. Colony Cove Props., LLC v. City of Carson, 640 F.3d 948, 955
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`(9th Cir. 2011) (dismissal under Federal Rule of Civil Procedure 12(b)(6));
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`Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir. 1999) (dismissal on the basis of
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`judicial immunity). We affirm.
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`The district court properly dismissed Rote’s claims under 42 U.S.C.
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`§ 1985(3) because Rote failed to allege facts sufficient to show that defendants
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`conspired to deny him equal protection of the law based on his membership in a
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`protected class. See Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 626 (9th
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`Cir. 1988) (setting forth elements of a claim under § 1985(3)); see also SeaRiver
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`Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir. 2002) (explaining
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`that a “class of one” discrimination claim requires showing a plaintiff “has been
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`intentionally treated differently from others similarly situated and that there is no
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`rational basis for the difference in treatment”).
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`The district court properly dismissed Rote’s First Amendment retaliation and
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`procedural due process claims against the state defendants because Rote failed to
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`allege facts sufficient to state a plausible claim and defendant Judge Steele is
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`entitled to absolute judicial immunity. See Hebbe v. Pliler, 627 F.3d 338, 341-42
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`(9th Cir. 2010) (explaining that although pro se pleadings are construed liberally,
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`plaintiff must present factual allegations sufficient to state a plausible claim for
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`
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`2
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`22-35261
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`
`
`
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`relief); Duvall v. County of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001)
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`(describing factors relevant to the determination of whether an act is judicial in
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`nature and subject to absolute judicial immunity); see also Capp v. County of San
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`Diego, 940 F.3d 1046, 1053-58 (9th Cir. 2019) (setting forth elements of a First
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`Amendment retaliation claim); Portman v. County of Santa Clara, 995 F.2d 898,
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`904 (9th Cir. 1993) (setting forth elements of a procedural due process claim).
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`The district court properly dismissed Rote’s claims against the federal
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`defendants because a Bivens remedy is not available for his claims. See Egbert v.
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`Boule, 142 S. Ct. 1793, 1803-04 (2022) (explaining that recognizing a cause of
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`action under Bivens is “a disfavored judicial activity” and that the presence of an
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`alternative remedial process precludes recognizing a Bivens cause of action in a
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`new context (citation and internal quotation marks omitted)).
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`The district court did not abuse its discretion by denying Rote leave to
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`amend his second amended complaint because Rote had already been given notice
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`of the pleading deficiencies and an opportunity to amend, and further amendment
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`would be futile. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc)
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`(setting forth standard of review and explaining that leave to amend need not be
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`given if amendment would be futile); see also Chodos v. West Publ’g Co., 292
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`F.3d 992, 1003 (9th Cir. 2002) (noting that a district court’s discretion is
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`particularly broad where it has already granted leave to amend).
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`
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`3
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`22-35261
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`
`
`
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`The district court did not abuse its discretion by denying Rote’s request to
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`recuse the judges of the District of Oregon because Rote failed to establish any
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`ground for recusal. See Liteky v. United States, 510 U.S. 540, 555 (1994)
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`(“[J]udicial rulings alone almost never constitute a valid basis for a bias or
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`partiality motion.”); United States v. Sibla, 624 F.2d 864, 869 (9th Cir. 1980)
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`(setting forth standard of review).
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`The federal defendants’ motion for judicial notice (Docket Entry No. 28) is
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`denied as unnecessary.
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`Rote’s motion for leave to file separate reply brief (Docket Entry No. 41) is
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`granted. The Clerk will file the reply briefs submitted on November 28, 2022.
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`
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`AFFIRMED.
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`4
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`22-35261
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`
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