Peter Garcia v. Coast Community Health Center

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 21 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PETER GARCIA, No. 21-35555

Plaintiff-Appellant, D.C. No. 6:20-cv-02175-MC

v. MEMORANDUM* COAST COMMUNITY HEALTH CENTER,

Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding

Submitted July 12, 2022**

Before: SCHROEDER, R. NELSON, and VANDYKE, Circuit Judges.

Peter Garcia appeals pro se from the district court’s judgment dismissing his

action alleging violations of Title VII, the Age Discrimination in Employment Act

(“ADEA”), and the Americans with Disabilities Act (“ADA”). We have

jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s

* 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). dismissal under Federal Rule of Civil Procedure 12(b)(6). Hebbe v. Pliler, 627

F.3d 338, 341 (9th Cir. 2010). We affirm.

The district court properly dismissed Garcia’s action because Garcia failed

to allege facts sufficient to state a plausible claim for relief. See id. at 341-42

(although pro se pleadings are to be construed liberally, a plaintiff must present

factual allegations sufficient to state a plausible claim for relief); Josephs v. Pac.

Bell, 443 F.3d 1050, 1061 (9th Cir. 2006) (holding plaintiff must exhaust ADA

claims with the EEOC before filing suit).

The district court did not abuse its discretion in dismissing Garcia’s action

without leave to amend because amendment would be futile. See Cervantes v.

Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth

standard of review and grounds for denial of leave to amend).

The district court did not abuse its discretion in awarding attorney’s fees to

appellee on the basis of its determination that Garcia’s action was frivolous. See

Christiansburg Garment Co. v. Equal Emp. Opportunity Comm’n, 434 U.S. 412,

421-23 (1978).

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).

AFFIRMED.

2 21-35555