NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 10 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
NIKESHKUMAR AHIR; PINTUBEN No. 24-2268 NIKESHKUMAR AHIR; PAWANPUTRA D.C. No. 108, INC., 2:23-cv-05626-MWF-PVC Plaintiffs - Appellants, MEMORANDUM* v.
CITY OF LOS ANGELES, a municipal corporation; LOS ANGELES DEPARTMENT OF WATER AND POWER; RYAN TAGUINES; MATTHEW LUM; DOES, 1-10 Inclusive,
Defendants - Appellees.
Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding
Submitted April 8, 2025** Pasadena, California
Before: MURGUIA, Chief Judge, and BADE and SUNG, Circuit Judges.
* 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). Plaintiffs Nikeshkumar Ahir, Pintuben Nikeshkumar Ahir, and Pawanputra
108 Inc. owned and operated the 108 Motel (the “Motel”) in Los Angeles,
California from December 2022 to September 2024. Defendants are the City of
Los Angeles (“City”), the City’s Department of Water and Power (“DWP”), City
employees Matthew Lum and Ryan Taguines, and unidentified Doe individuals.
Plaintiffs purchased the property from the prior owners, who had unsuccessfully
challenged the City’s 2018 revocation of a conditional use permit (“CUP”) that
allowed the Motel to operate. See Akshar Glob. Invs. Corp. v. City of Los Angeles,
817 F. App’x 301 (9th Cir. 2020) (Akshar I); Akshar Glob. Invs. Corp. v. City of
Los Angeles, No. 22-55394, 2023 WL 2770821 (9th Cir. Apr. 4, 2023) (Akshar II).
Plaintiffs now challenge the City’s 2023 physical closure of the Motel,
arguing that the closure violates 42 U.S.C. § 1983 and the Fair Housing Act
(“FHA”) because, despite the 2018 CUP revocation, the City issued Plaintiffs a
business tax registration certificate for the Motel in December 2022. Plaintiffs also
seek mandamus review of the City’s actions under California Code of Civil
Procedure § 1094.5. The district court granted Defendants’ motion to dismiss the
federal claims in Plaintiffs’ Second Amended Complaint (“SAC”) and declined to
exercise supplemental jurisdiction over the state law claim. This appeal followed.
2 We have jurisdiction under 28 U.S.C. § 1291 and affirm.1
I.
“We review the district court’s dismissal of the complaint for failure to state
a claim and the legal issues it presents de novo.” Seven Arts Filmed Ent. Ltd. v.
Content Media Corp. PLC, 733 F.3d 1251, 1253–54 (9th Cir. 2013). “We accept as
true all well-pleaded allegations of material fact but are not required to accept as
true allegations that contradict exhibits attached to the Complaint or matters
properly subject to judicial notice, or allegations that are merely conclusory,
unwarranted deductions of fact, or unreasonable inferences.” Id. at 1254 (internal
quotations and citation omitted).
“We review for abuse of discretion the district court’s decision to decline
supplemental jurisdiction.” Trs. of the Constr. Indus. & Laborers Health &
Welfare Tr. v. Desert Valley Landscape & Maint., Inc., 333 F.3d 923, 925 (9th Cir.
2003).
II.
“To state a claim under § 1983, a plaintiff must allege two essential
elements: (1) that a right secured by the Constitution or laws of the United States
was violated, and (2) that the alleged violation was committed by a person acting
1 We grant Defendants’ request at Dkt. 19 for judicial notice of two documents in the public record. See Fed. R. Evid. 201(b)(2); Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001).
3 under the color of State law.” Benavidez v. County of San Diego, 993 F.3d 1134,
1144 (9th Cir. 2021) (citation omitted).
The district court correctly held that the SAC failed to state a claim for
constitutional violations based on the following: (1) First Amendment retaliation,
(2) Fourth Amendment search and seizure, (3) Fifth Amendment takings,
(4) Fourteenth Amendment substantive due process, and (5) Fourteenth
Amendment procedural due process.
First Amendment retaliation. The SAC fails to allege a plausible violation
of Plaintiffs’ First Amendment rights. Lum could not have extended the Motel’s
closure in retaliation for the filing of this lawsuit because the SAC does not allege
that Plaintiffs submitted the necessary application to modify the prior nuisance
abatement decision. See Los Angeles Municipal Code (“LAMC”) § 12.27.1(E)
(2009).
Fourth Amendment search and seizure. The SAC does not allege any
searches took place during Plaintiffs’ ownership of the Motel, and Plaintiffs may
not vicariously assert the Fourth Amendment rights of others. See Plumhoff v.
Rickard, 572 U.S. 765, 778 (2014). To the extent Plaintiffs base a seizure claim on
the fencing and closure of the Motel in 2023, that action was clearly permitted by
the accompanying abatement warrant.
Fifth Amendment takings. The SAC fails to state a claim under the Fifth
4 Amendment Takings Clause. No claim may be based on the issuance of Plaintiffs’
tax registration certificate because the certificate states on its face that it does not
constitute a permit to operate the Motel. Additionally, Plaintiffs cannot plead either
a per se takings claim, because the SAC fails to plead the City’s appropriation of
“private property for itself or a third party,” Cedar Point Nursery v. Hassid, 594
U.S. 139, 148 (2021), or a regulatory takings claim, because Defendants’ purpose
in closing the Motel was to abate a public nuisance, see Keystone Bituminous Coal
Ass’n v. DeBenedictis, 480 U.S. 470, 492 n.22 (1987).
Fourteenth Amendment substantive due process. The Motel’s closure did
not violate Plaintiffs’ substantive due process rights. Because the closure’s purpose
was to abate a nuisance, it was not “clearly arbitrary and unreasonable, having no
substantial relation to the public health, safety, morals or general welfare.” Yagman
v. Garcetti, 852 F.3d 859, 867 (9th Cir. 2017) (citation omitted). In addition, the
City did not have a duty to secure the Motel after fencing it because the Fourteenth
Amendment imposes a duty to protect individuals from third parties when the state
restrains an individual’s personal liberty, not an economic interest. Patel v. Kent
Sch. Dist.,
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 10 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
NIKESHKUMAR AHIR; PINTUBEN No. 24-2268 NIKESHKUMAR AHIR; PAWANPUTRA D.C. No. 108, INC., 2:23-cv-05626-MWF-PVC Plaintiffs - Appellants, MEMORANDUM* v.
CITY OF LOS ANGELES, a municipal corporation; LOS ANGELES DEPARTMENT OF WATER AND POWER; RYAN TAGUINES; MATTHEW LUM; DOES, 1-10 Inclusive,
Defendants - Appellees.
Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding
Submitted April 8, 2025** Pasadena, California
Before: MURGUIA, Chief Judge, and BADE and SUNG, Circuit Judges.
* 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). Plaintiffs Nikeshkumar Ahir, Pintuben Nikeshkumar Ahir, and Pawanputra
108 Inc. owned and operated the 108 Motel (the “Motel”) in Los Angeles,
California from December 2022 to September 2024. Defendants are the City of
Los Angeles (“City”), the City’s Department of Water and Power (“DWP”), City
employees Matthew Lum and Ryan Taguines, and unidentified Doe individuals.
Plaintiffs purchased the property from the prior owners, who had unsuccessfully
challenged the City’s 2018 revocation of a conditional use permit (“CUP”) that
allowed the Motel to operate. See Akshar Glob. Invs. Corp. v. City of Los Angeles,
817 F. App’x 301 (9th Cir. 2020) (Akshar I); Akshar Glob. Invs. Corp. v. City of
Los Angeles, No. 22-55394, 2023 WL 2770821 (9th Cir. Apr. 4, 2023) (Akshar II).
Plaintiffs now challenge the City’s 2023 physical closure of the Motel,
arguing that the closure violates 42 U.S.C. § 1983 and the Fair Housing Act
(“FHA”) because, despite the 2018 CUP revocation, the City issued Plaintiffs a
business tax registration certificate for the Motel in December 2022. Plaintiffs also
seek mandamus review of the City’s actions under California Code of Civil
Procedure § 1094.5. The district court granted Defendants’ motion to dismiss the
federal claims in Plaintiffs’ Second Amended Complaint (“SAC”) and declined to
exercise supplemental jurisdiction over the state law claim. This appeal followed.
2 We have jurisdiction under 28 U.S.C. § 1291 and affirm.1
I.
“We review the district court’s dismissal of the complaint for failure to state
a claim and the legal issues it presents de novo.” Seven Arts Filmed Ent. Ltd. v.
Content Media Corp. PLC, 733 F.3d 1251, 1253–54 (9th Cir. 2013). “We accept as
true all well-pleaded allegations of material fact but are not required to accept as
true allegations that contradict exhibits attached to the Complaint or matters
properly subject to judicial notice, or allegations that are merely conclusory,
unwarranted deductions of fact, or unreasonable inferences.” Id. at 1254 (internal
quotations and citation omitted).
“We review for abuse of discretion the district court’s decision to decline
supplemental jurisdiction.” Trs. of the Constr. Indus. & Laborers Health &
Welfare Tr. v. Desert Valley Landscape & Maint., Inc., 333 F.3d 923, 925 (9th Cir.
2003).
II.
“To state a claim under § 1983, a plaintiff must allege two essential
elements: (1) that a right secured by the Constitution or laws of the United States
was violated, and (2) that the alleged violation was committed by a person acting
1 We grant Defendants’ request at Dkt. 19 for judicial notice of two documents in the public record. See Fed. R. Evid. 201(b)(2); Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001).
3 under the color of State law.” Benavidez v. County of San Diego, 993 F.3d 1134,
1144 (9th Cir. 2021) (citation omitted).
The district court correctly held that the SAC failed to state a claim for
constitutional violations based on the following: (1) First Amendment retaliation,
(2) Fourth Amendment search and seizure, (3) Fifth Amendment takings,
(4) Fourteenth Amendment substantive due process, and (5) Fourteenth
Amendment procedural due process.
First Amendment retaliation. The SAC fails to allege a plausible violation
of Plaintiffs’ First Amendment rights. Lum could not have extended the Motel’s
closure in retaliation for the filing of this lawsuit because the SAC does not allege
that Plaintiffs submitted the necessary application to modify the prior nuisance
abatement decision. See Los Angeles Municipal Code (“LAMC”) § 12.27.1(E)
(2009).
Fourth Amendment search and seizure. The SAC does not allege any
searches took place during Plaintiffs’ ownership of the Motel, and Plaintiffs may
not vicariously assert the Fourth Amendment rights of others. See Plumhoff v.
Rickard, 572 U.S. 765, 778 (2014). To the extent Plaintiffs base a seizure claim on
the fencing and closure of the Motel in 2023, that action was clearly permitted by
the accompanying abatement warrant.
Fifth Amendment takings. The SAC fails to state a claim under the Fifth
4 Amendment Takings Clause. No claim may be based on the issuance of Plaintiffs’
tax registration certificate because the certificate states on its face that it does not
constitute a permit to operate the Motel. Additionally, Plaintiffs cannot plead either
a per se takings claim, because the SAC fails to plead the City’s appropriation of
“private property for itself or a third party,” Cedar Point Nursery v. Hassid, 594
U.S. 139, 148 (2021), or a regulatory takings claim, because Defendants’ purpose
in closing the Motel was to abate a public nuisance, see Keystone Bituminous Coal
Ass’n v. DeBenedictis, 480 U.S. 470, 492 n.22 (1987).
Fourteenth Amendment substantive due process. The Motel’s closure did
not violate Plaintiffs’ substantive due process rights. Because the closure’s purpose
was to abate a nuisance, it was not “clearly arbitrary and unreasonable, having no
substantial relation to the public health, safety, morals or general welfare.” Yagman
v. Garcetti, 852 F.3d 859, 867 (9th Cir. 2017) (citation omitted). In addition, the
City did not have a duty to secure the Motel after fencing it because the Fourteenth
Amendment imposes a duty to protect individuals from third parties when the state
restrains an individual’s personal liberty, not an economic interest. Patel v. Kent
Sch. Dist., 648 F.3d 965, 971–72 (9th Cir. 2011).
Fourteenth Amendment procedural due process. Plaintiffs’ procedural due
process challenges fail because all actions connected with the closure were
authorized by the 2018 CUP revocation, which was upheld in the prior Akshar I
5 and Akshar II litigation.
III.
The district court correctly dismissed Plaintiffs’ FHA claim because the
SAC’s allegations are too conclusory to state a claim. There are no allegations of
“statistics or other proof” that demonstrate a discriminatory impact.2 Gamble v.
City of Escondido, 104 F.3d 300, 306 (9th Cir. 1997).
IV.
Finally, the district court did not abuse its discretion in declining to exercise
supplemental jurisdiction over Plaintiffs’ remaining state law claim under 28
U.S.C. § 1367(c)(3) because it properly dismissed Plaintiffs’ federal claims. See
City of Colton v. Am. Promotional Events, Inc.-W., 614 F.3d 998, 1008 (9th Cir.
2010).
AFFIRMED.
2 Because Plaintiffs fail to allege a constitutional or statutory violation, their arguments regarding municipal liability under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), and qualified immunity against the individual Defendants necessarily fail. See Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011); Wood v. Moss, 572 U.S. 744, 757 (2014).