Timothy Whiting v. the Coachella Valley Housing Coalition

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 26, 2024
• Docket: 23-55643
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 26 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TIMOTHY LEWIS WHITING, No. 23-55643

Plaintiff-Appellant, D.C. No. 5:22-cv-01595-SSS-KK

v. MEMORANDUM* THE COACHELLA VALLEY HOUSING COALITION, a California non-profit public benefit corporation; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Sunshine Suzanne Sykes, District Judge, Presiding

Submitted November 20, 2024**

Before: CANBY, TALLMAN, and CLIFTON, Circuit Judges.

Timothy Lewis Whiting appeals pro se from the district court’s judgment

dismissing his civil rights action alleging racial discrimination in housing. We

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

* 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). Whiting’s request for oral argument, set forth in the opening brief, is denied. failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Mudpie,

Inc. v. Travelers Cas. Ins. Co. of Am., 15 F.4th 885, 889 (9th Cir. 2021). We

affirm.

The district court properly dismissed Whiting’s Fair Housing Act (“FHA”)

claims because Whiting failed to allege facts sufficient to show that he was subject

to severe or pervasive harassment based on race, that defendants interfered with the

exercise of his rights under the FHA, that he suffered a distinct and palpable injury

caused by defendant’s discriminatory conduct, or that he was retaliated against for

protected activity. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (a plaintiff fails

to show he is entitled to relief if the complaint’s factual allegations “do not permit

the court to infer more than the mere possibility of [the alleged] misconduct”);

Morris v. W. Hayden Ests. First Addition Homeowners Ass’n, Inc., 104 F.4th 1128,

1147 (9th Cir. 2024) (setting forth elements of a hostile housing environment claim

under the FHA); Walker v. City of Lakewood, 272 F.3d 1114, 1128 (9th Cir. 2001)

(discussing elements of a retaliation claim under the FHA); Harris v. Itzhaki, 183

F.3d 1043, 1051 (9th Cir. 1999) (setting forth elements of a disparate treatment

claim under the FHA).

The district court properly dismissed Whiting’s 42 U.S.C. § 1981 claim

because Whiting failed to allege facts sufficient to show that he was discriminated

against on the basis of his race. See Evans v. McKay, 869 F.2d 1341, 1344 (9th

2 23-55643 Cir. 1989) (a § 1981 claim requires a showing of intentional discrimination on

account of race).

The district court properly dismissed Whiting’s claims under California’s

Fair Employment and Housing Act (“FEHA”) and the Unruh Act because Whiting

failed to allege facts sufficient to show intentional discrimination or retaliation

based on protected activity. See Cal. Gov’t Code § 12955.7 (FEHA provision

prohibiting retaliation); Harris v. Capital Growth Inv’rs XIV, 805 P.2d 873, 893

(1991) (to state a claim under the Unruh Act premised on racial discrimination, a

plaintiff must plead intentional discrimination), superseded by statute on other

grounds as stated in Munson v. Del Taco, Inc., 208 P.3d 623 (2009).

The district court properly dismissed Whiting’s claim under California’s

Unfair Competition Law (“UCL”) because Whiting failed to allege a statutory

predicate. See Aleksick v. 7–Eleven, Inc., 140 Cal. Rptr. 3d 796, 801 (Ct. App.

2012) (“When a statutory claim fails, a derivative UCL claim also fails.”)

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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