Raul Mendez v. Ada County

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 23, 2021
• Docket: 20-35917
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 23 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RAUL MENDEZ, No. 20-35917

Plaintiff-Appellant, D.C. No. 1:19-cv-00301-BLW

v. MEMORANDUM* ADA COUNTY; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, District Judge, Presiding

Submitted April 20, 2021**

Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges.

Raul Mendez appeals pro se from the district court’s judgment dismissing

his action alleging federal and state law claims arising out of a dispute regarding

trash collection fees. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo a dismissal for failure to state a claim under Federal Rule of Civil Procedure

* 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). 12(b)(6). Puri v. Khalsa, 844 F.3d 1152, 1157 (9th Cir. 2017). We affirm.

The district court properly dismissed Mendez’s 42 U.S.C. § 1983 equal

protection claim because Mendez failed to allege facts sufficient to show that

defendants discriminated against him because of his race. See Hartmann v. Cal.

Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013) (elements of an

equal protection claim); see also Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139

(9th Cir. 2012) (a private entity is liable under § 1983 only if the entity acted under

color of state law).

The district court properly dismissed Mendez’s Fair Debt Collection

Practices Act (“FDCPA”) claim because, even assuming the trash collection fees

qualified as a “debt” under the FDCPA, Mendez failed to allege facts sufficient to

show that any defendant was a “debt collector” within the meaning of the FDCPA.

See 15 U.S.C. § 1692a(6) (defining “debt collector” under the FDCPA as “any

person . . . who regularly collects or attempts to collect . . . debts owed . . .

another”).

The district court properly dismissed Mendez’s Racketeer Influenced and

Corrupt Organizations Act (“RICO”) claim because Mendez failed to allege facts

sufficient to state a plausible claim. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th

Cir. 2010) (although pro se pleadings are construed liberally, plaintiff must present

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

2 20-35917 MemberWorks, Inc., 625 F.3d 550, 557 (9th Cir. 2010) (elements of a RICO

claim).

The district court did not err in denying Mendez’s motions for injunctive

relief without first holding hearings. See Fed. R. Civ. P. 78(b) (“By rule or order,

the court may provide for submitting and determining motions on briefs, without

oral hearings.”); D. Idaho L. Civ. R. 7.1(d)(1)(B) (“If the presiding judge

determines that oral argument will not be necessary, the matter will be decided on

the briefs.”).

The district court did not abuse its discretion in declining to exercise

supplemental jurisdiction over Mendez’s state law claims and dismissing them

without prejudice. See 28 U.S.C. § 1367(c)(3); Parra v. PacifiCare of Ariz., Inc.,

715 F.3d 1146, 1156 (9th Cir. 2013) (once a district court dismisses the only

claims over which it had original jurisdiction, it does not abuse its discretion in

dismissing the remaining state law claims).

To the extent that the district court erred in granting defendants’ motion to

strike materials submitted by Mendez in opposition to defendants’ motion to

dismiss, any error was harmless because, even considering those materials,

Mendez’s amended complaint failed to state a claim. See Cooper v. Firestone Tire

& Rubber Co., 945 F.2d 1103, 1106 (9th Cir. 1991) (if an error is harmless, it does

not require reversal).

3 20-35917 We reject as meritless Mendez’s contentions that the district court failed to

liberally construe his complaint and that he was entitled to discovery prior to

dismissal of the action.

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

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

AFFIRMED.

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