Allison Rice v. City & County of San Francisco

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 16 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALLISON BARTON RICE, an individual, No. 20-15087

Plaintiff-Appellant, D.C. No. 3:19-cv-04250-LB

v. MEMORANDUM* CITY AND COUNTY OF SAN FRANCISCO; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Laurel D. Beeler, Magistrate Judge, Presiding**

Submitted September 8, 2020***

Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

** The parties consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c).

*** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Allison Barton Rice appeals pro se from the district court’s judgment

dismissing his housing and disability discrimination action arising out of

defendants’ denial of his request to have a rent-paying roommate. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to

state a claim under Fed. R. Civ. P. 12(b)(6). McGary v. City of Portland, 386 F. 3d

1259, 1261 (9th Cir. 2004). We affirm in part, reverse in part, and remand.

The district court properly dismissed Rice’s Americans with Disabilities Act

(“ADA”) claim because Rice failed to allege facts sufficient to show that he was

“excluded from participation in or denied the benefits of [defendants’] services,

programs, or activities” because of his disability. 42 U.S.C.A. § 12132; McGary,

386 F.3d at 1265 (elements of a disability discrimination claim under Title II of the

ADA).

The district court properly dismissed Rice’s 42 U.S.C. § 1983 claim because

Rice failed to allege facts sufficient to show that defendants discriminated against

him on the basis of his disability. See Lee v. City of Los Angeles, 250 F.3d 668,

686-87 (9th Cir. 2001) (elements of an equal protection claim under § 1983).

The district court properly dismissed Rice’s 42 U.S.C. § 1985(3) claim

because Rice failed to allege facts sufficient to show that defendants conspired to

deprive him of equal protection of the laws. See Karim-Panahi v. L.A. Police

Dep’t, 839 F.2d 621, 626 (9th Cir. 1988) (elements of a claim under § 1985(3)); id.

2 20-15087 at 626 (explaining that “[a] mere allegation of conspiracy without factual

specificity is insufficient” to state a § 1985(3) conspiracy claim).

The district court dismissed Rice’s Fair Housing Act (“FHA”) claim for

failure to state a claim because defendants did not deny Rice an accommodation

needed for his disability, but instead denied him a rent-paying roommate, which he

was not permitted to have under his condominium agreement unless he met certain

exceptions, which he did not. However, liberally construed, Rice alleged that his

requested accommodation of a rent-paying roommate was reasonable and

necessary to accommodate his mental health disability, and that defendants failed

to provide a reasonable accommodation for his disability when they refused to

grant him an exception to the agreement to permit him to have a rent-paying

roommate. See Budnick v. Town of Carefree, 518 F.3d 1109, 1119 (9th Cir. 2008)

(elements of a failure-to-accommodate claim under the FHA). We therefore

reverse the judgment as to this claim only, and remand for further proceedings.

The district court did not abuse its discretion by denying Rice’s motion for

default judgment because defendants in their official capacities had already filed a

motion to dismiss the complaint, and defendants in their individual capacities had

not been properly served. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.

1986) (setting forth standard of review and factors for determining whether to enter

default judgment).

3 20-15087 The district court did not abuse its discretion by declining to exercise

supplemental jurisdiction over Rice’s related state law claims. See 28 U.S.C.

§ 1367(c)(3); Ove v. Gwinn, 264 F.3d 817, 826 (9th Cir. 2001) (standard of review;

court may decline supplemental jurisdiction over related state law claims once it

has dismissed all claims over which it has original jurisdiction).

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

in the opening brief, or arguments and allegations raised for the first time on

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

The parties will bear their own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.

4 20-15087