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 2021-04

Raul Mendez v. Ada County ( 2021 )


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  •                            NOT FOR PUBLICATION                            FILED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.
4                                   20-35917