NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 15 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
DANIEL DELACRUZ, Sr., No. 18-16956
Plaintiff-Appellant, D.C. No. 5:16-cv-06858-BLF
v. MEMORANDUM* THE STATE BAR OF CALIFORNIA, a California public entity; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the Northern District of California Beth Labson Freeman, District Judge, Presiding
Submitted April 11, 2019**
Before: WALLACE, FARRIS, and TROTT, Circuit Judges.
Daniel Delacruz, Sr., appeals pro se from the district court’s judgment
dismissing his action alleging federal and state-law claims arising from his second
denial of admission to practice law by the State Bar of California. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. ASARCO, LLC v. Union
* 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). Pac. R.R. Co., 765 F.3d 999, 1004 (9th Cir. 2014) (dismissal for failure to state a
claim under Fed. R. Civ. P. 12(b)(6)); Mpoyo v. Litton Electro–Optical Sys., 430
F.3d 985, 987 (9th Cir. 2005) (dismissal on basis of res judicata). We may affirm
on any basis supported by the record. Thompson v. Paul, 547 F.3d 1055, 1058-59
(9th Cir. 2008). We affirm.
The district court properly dismissed Delacruz’s Computer Fraud and Abuse
Act (“CFAA”) claims against the defendants associated with the State Bar of
California because Delacruz did not plausibly allege facts showing that these
defendants “intentionally accesse[d] a protected computer” or caused damages in
violation of 18 U.S.C. § 1030(a)(5). See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (to avoid dismissal, “a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face” (citation and
internal quotation marks omitted)).
The district court properly dismissed Delacruz’s conspiracy claims because
Delacruz did not plausibly allege facts showing the existence of an agreement. See
Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 990-91 (9th Cir. 2006)
(“the plaintiff [must] plead at least the basic elements of the conspiracy, especially
the existence of an agreement.” (citation omitted)).
The district court properly dismissed Delacruz’s Fifth and Fourteenth
Amendment claims, as well as any associated violation of the Americans with
2 18-16956 Disabilities Act (“ADA”), against the defendants associated with the State Bar of
California as barred by the doctrine of res judicata because his claims were raised,
or could have been raised, in a prior action that involved the same primary rights
and parties or their privies, and resulted in a final judgment on the merits. See
Adam Bros. Farming, Inc. v. County of Santa Barbara, 604 F.3d 1142, 1148-49
(9th Cir. 2010) (elements of res judicata under California law; explaining that
California’s doctrine of res judicata is based on a primary rights theory); Gupta v.
Thai Airways Int’l, Ltd., 487 F.3d 759, 765 (9th Cir. 2007) (state law preclusion
law governs whether prior state court judgment precludes relitigation of identical
claim in federal court); City of Martinez v. Texaco Trading & Transp. Inc., 353
F.3d 758, 764 (9th Cir. 2003) (privity applies under California law “if a party’s
interests are so similar to another party’s interests that the latter was the former’s
virtual representative in the earlier action” (citation and internal quotation marks
omitted)).
Dismissal of Delacruz’s retaliation claims under the ADA was proper
because Delacruz failed to allege facts sufficient to show causation. See Brown v.
City of Tucson, 336 F.3d 1181, 1187-88 (9th Cir. 2003) (setting forth elements of a
retaliation claim under the ADA).
The district court properly dismissed Delacruz’s § 1981 claims against the
defendants associated with the State Bar of California as being barred by sovereign
3 18-16956 immunity. See Pittman v. Ore., Emp’t Dep’t, 509 F.3d 1065, 1073 n.5 (9th Cir.
2007) (“[S]tates are . . . immune from suits in federal court under § 1981.”).
The district court properly dismissed Delacruz’s CFAA claims against the
defendants associated with Gordon Rees Scully Mansukhani, LLP as barred by the
doctrine of res judicata because Delacruz alleged nearly identical claims against
Gordon Rees Scully Mansukhani, LLP, or its privy, in a prior federal action in
which there was a final judgment on the merits. See Stewart v. U.S. Bancorp, 297
F.3d 953, 956 (9th Cir. 2002) (elements of claim preclusion under federal law); see
also Tahoe–Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d
1064, 1081 (9th Cir. 2003) (“Even when the parties are not identical, privity may
exist if there is substantial identity between parties, that is, when there is sufficient
commonality of interest.” (citation and internal quotation marks omitted)).
The district court properly dismissed Delacruz’s First, Fifth and Fourteenth
Amendment claims against the defendants associated with Gordon Rees Scully
Mansukhani, LLP because Delacruz failed to allege facts sufficient to show state
action. See Iqbal, 556 U.S. at 678; DeGrassi v. City of Glendora, 207 F.3d 636,
647 (9th Cir. 2000) (“[B]are allegation[s]” of “joint action will not overcome a
motion to dismiss; the plaintiff must allege facts tending to show that [defendants]
acted under color of state law or authority.” (citation and internal quotation marks
4 18-16956 The district court did not abuse its discretion in declining supplemental
jurisdiction over Delacruz’s state law claims after dismissing Delacruz’s federal
claims. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1149 (9th Cir. 2012)
(when all federal law claims have been resolved, a district court has discretion
whether to exercise supplemental jurisdiction under 28 U.S.C. § 1367 over
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 15 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
DANIEL DELACRUZ, Sr., No. 18-16956
Plaintiff-Appellant, D.C. No. 5:16-cv-06858-BLF
v. MEMORANDUM* THE STATE BAR OF CALIFORNIA, a California public entity; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the Northern District of California Beth Labson Freeman, District Judge, Presiding
Submitted April 11, 2019**
Before: WALLACE, FARRIS, and TROTT, Circuit Judges.
Daniel Delacruz, Sr., appeals pro se from the district court’s judgment
dismissing his action alleging federal and state-law claims arising from his second
denial of admission to practice law by the State Bar of California. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. ASARCO, LLC v. Union
* 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). Pac. R.R. Co., 765 F.3d 999, 1004 (9th Cir. 2014) (dismissal for failure to state a
claim under Fed. R. Civ. P. 12(b)(6)); Mpoyo v. Litton Electro–Optical Sys., 430
F.3d 985, 987 (9th Cir. 2005) (dismissal on basis of res judicata). We may affirm
on any basis supported by the record. Thompson v. Paul, 547 F.3d 1055, 1058-59
(9th Cir. 2008). We affirm.
The district court properly dismissed Delacruz’s Computer Fraud and Abuse
Act (“CFAA”) claims against the defendants associated with the State Bar of
California because Delacruz did not plausibly allege facts showing that these
defendants “intentionally accesse[d] a protected computer” or caused damages in
violation of 18 U.S.C. § 1030(a)(5). See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (to avoid dismissal, “a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face” (citation and
internal quotation marks omitted)).
The district court properly dismissed Delacruz’s conspiracy claims because
Delacruz did not plausibly allege facts showing the existence of an agreement. See
Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 990-91 (9th Cir. 2006)
(“the plaintiff [must] plead at least the basic elements of the conspiracy, especially
the existence of an agreement.” (citation omitted)).
The district court properly dismissed Delacruz’s Fifth and Fourteenth
Amendment claims, as well as any associated violation of the Americans with
2 18-16956 Disabilities Act (“ADA”), against the defendants associated with the State Bar of
California as barred by the doctrine of res judicata because his claims were raised,
or could have been raised, in a prior action that involved the same primary rights
and parties or their privies, and resulted in a final judgment on the merits. See
Adam Bros. Farming, Inc. v. County of Santa Barbara, 604 F.3d 1142, 1148-49
(9th Cir. 2010) (elements of res judicata under California law; explaining that
California’s doctrine of res judicata is based on a primary rights theory); Gupta v.
Thai Airways Int’l, Ltd., 487 F.3d 759, 765 (9th Cir. 2007) (state law preclusion
law governs whether prior state court judgment precludes relitigation of identical
claim in federal court); City of Martinez v. Texaco Trading & Transp. Inc., 353
F.3d 758, 764 (9th Cir. 2003) (privity applies under California law “if a party’s
interests are so similar to another party’s interests that the latter was the former’s
virtual representative in the earlier action” (citation and internal quotation marks
omitted)).
Dismissal of Delacruz’s retaliation claims under the ADA was proper
because Delacruz failed to allege facts sufficient to show causation. See Brown v.
City of Tucson, 336 F.3d 1181, 1187-88 (9th Cir. 2003) (setting forth elements of a
retaliation claim under the ADA).
The district court properly dismissed Delacruz’s § 1981 claims against the
defendants associated with the State Bar of California as being barred by sovereign
3 18-16956 immunity. See Pittman v. Ore., Emp’t Dep’t, 509 F.3d 1065, 1073 n.5 (9th Cir.
2007) (“[S]tates are . . . immune from suits in federal court under § 1981.”).
The district court properly dismissed Delacruz’s CFAA claims against the
defendants associated with Gordon Rees Scully Mansukhani, LLP as barred by the
doctrine of res judicata because Delacruz alleged nearly identical claims against
Gordon Rees Scully Mansukhani, LLP, or its privy, in a prior federal action in
which there was a final judgment on the merits. See Stewart v. U.S. Bancorp, 297
F.3d 953, 956 (9th Cir. 2002) (elements of claim preclusion under federal law); see
also Tahoe–Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d
1064, 1081 (9th Cir. 2003) (“Even when the parties are not identical, privity may
exist if there is substantial identity between parties, that is, when there is sufficient
commonality of interest.” (citation and internal quotation marks omitted)).
The district court properly dismissed Delacruz’s First, Fifth and Fourteenth
Amendment claims against the defendants associated with Gordon Rees Scully
Mansukhani, LLP because Delacruz failed to allege facts sufficient to show state
action. See Iqbal, 556 U.S. at 678; DeGrassi v. City of Glendora, 207 F.3d 636,
647 (9th Cir. 2000) (“[B]are allegation[s]” of “joint action will not overcome a
motion to dismiss; the plaintiff must allege facts tending to show that [defendants]
acted under color of state law or authority.” (citation and internal quotation marks
4 18-16956 The district court did not abuse its discretion in declining supplemental
jurisdiction over Delacruz’s state law claims after dismissing Delacruz’s federal
claims. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1149 (9th Cir. 2012)
(when all federal law claims have been resolved, a district court has discretion
whether to exercise supplemental jurisdiction under 28 U.S.C. § 1367 over
remaining state law claims).
The district court did not abuse its discretion by denying Delacruz’s motion
for a preliminary injunction because Delacruz failed to demonstrate a likelihood of
success on the merits or a likelihood of irreparable harm. See Winter v. Nat. Res.
Def. Council, 555 U.S. 7, 20-21 (2008) (factors for evaluating a motion for a
preliminary injunction); Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th
Cir. 2009) (standard of review).
The district court did not abuse its discretion by striking Delacruz’s second
amended complaint because Delacruz did not comply with Fed. R. Civ. P. 15(a).
See Jackson v. Bank of Haw., 902 F.2d 1385, 1387 (9th Cir. 1990) (standard of
review).
The district court did not abuse its discretion by denying Delacruz’s Fed. R.
Civ. P. 60(b) motion because Delacruz failed to establish any basis for relief. See
Sch. Dist. No. 1J Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th
Cir. 1993) (setting forth standard of review and grounds for reconsideration under
5 18-16956 Rule 60(b)).
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); Acosta–
Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1993) (issues not supported by
argument in pro se appellant’s opening brief are waived).
We reject as unsupported by the record Delacruz’s contention of misconduct
by the district court.
We reject as without merit the contention raised by the defendants associated
with Gordon Rees Scully Mansukhani, LLP that this court lacks jurisdiction over
this appeal as it relates to the defendants associated with Gordon Rees Scully
Mansukhani, LLP.
Delacruz’s motions for an expedited injunction (Docket Entry Nos. 29 and
36) are denied.
Delacruz’s renewed motion (Docket Entry No. 39) to maintain under seal
Volumes 3 and 4 of the supplemental excerpts of record is granted. The Clerk
shall publicly file the answering brief (Docket Entry No. 30), Volumes 1 and 2 of
the supplemental excerpts of record (Docket Entry No. 31), and the reply brief
(Docket Entry No. 20), and shall file Volumes 3 through 5 of the supplemental
excerpts of record under seal. No paper copies of the briefs or excerpts will be
6 18-16956 required. The Clerk shall maintain the renewed motion to seal under seal.
Delacruz’s motion for sanctions (Docket Entry No. 40) is denied.
AFFIRMED.
7 18-16956