Kristy Jimenez v. Service Employees International Union Local 775

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 23, 2023
• Docket: 22-35238
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION OCT 23 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRISTY L. JIMENEZ, No. 22-35238

Plaintiff-Appellant, D.C. No. 1:21-cv-03128-TOR

v. MEMORANDUM* SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 775, a local chapter of an unincorporated labor organization; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Washington Thomas O. Rice, District Judge, Presiding

Submitted October 19, 2023** San Francisco, California

Before: W. FLETCHER, NGUYEN, and R. NELSON, Circuit Judges.

Appellant Kristy Jimenez lives in Washington State and provides in-home

health services to several of her family members. Until May 2021, she paid 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). dues to Appellee SEIU Local 775. She brings claims under 42 U.S.C. § 1983

against all Appellees, a claim under the Racketeer Influenced and Corrupt

Organizations (“RICO”) Act against Appellees SEIU Local 775 and SEIU

International, and two state law claims. The district court granted a motion to

dismiss Jimenez’s claims against Appellees the Governor of Washington and the

Acting Secretary of the Washington Department of Social and Health Services (the

“State Defendants”). The court also granted a motion for judgment on the

pleadings regarding Jimenez’s claims against SEIU Local 775 and SEIU

International. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. The § 1983 claims against SEIU Local 775 and SEIU International fail

for lack of state action. See Belgau v. Inslee, 975 F.3d 940, 946–49 (9th Cir.

2020); Wright v. Serv. Emps. Int’l Union Loc. 503, 48 F.4th 1112, 1121–25 (9th

Cir. 2022).

2. Jimenez lacks standing to seek prospective relief against the State

Defendants. Her dues deductions stopped before she filed suit, and the district

court did not err in finding that Jimenez has not shown that future injury is

sufficiently likely to warrant prospective relief.

3. Jimenez’s RICO allegations, accepted as true, do not show that either

SEIU Local 775 or SEIU International acted with “the specific intent to defraud”

2 required for the alleged predicate offense of wire fraud. Eclectic Props. E., LLC v.

Marcus & Millichap Co., 751 F.3d 990, 997 (9th Cir. 2014). The facts alleged do

not “tend to exclude a plausible and innocuous alternative explanation” for the

unauthorized deductions she alleges. Id. at 998. The district court thus properly

dismissed Jimenez’s RICO claim.

4. The district court appropriately dismissed Jimenez’s claims with

prejudice. “Dismissal with prejudice . . . is not appropriate unless it is clear on de

novo review that the complaint could not be saved by amendment.” Eminence

Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). The allegations in

Jimenez’s complaint show that SEIU Local 775 and SEIU International are not

state actors and that Jimenez lacks standing to pursue her claims against the State

Defendants. With regard to her RICO claim, Jimenez has proposed to amend her

complaint, but only to fix a typographical error. She has not argued to us that there

is any additional information she would include in an amended complaint that

would address that claim’s deficiencies.

AFFIRMED.