Sam Leyba v. Nv Energy, Inc. ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 27 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAM LEYBA, No. 18-15295
Plaintiff-Appellant, D.C. No. 2:16-cv-01122-JCM-
CWH
v.
NV ENERGY, INC., MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted August 15, 2018**
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
Sam Leyba appeals from the district court’s judgment dismissing his
employment discrimination action alleging violations of Title VII and state law.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for
failure to state a claim under Fed. R. Civ. P. 12(b)(6). AE ex rel. Hernandez v.
*
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).
County of Tulare, 666 F.3d 631, 636 (9th Cir. 2012). We affirm.
The district court properly dismissed Leyba’s discrimination claim because
Leyba failed to allege facts sufficient to state a plausible claim. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”); Leong v. Potter, 347 F.3d
1117, 1124 (9th Cir. 2003) (elements of discrimination claim under Title VII).
The district court properly dismissed Leyba’s hostile work environment
claim because Leyba did not allege that the conduct was sufficiently severe or
pervasive. See Ariz. ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189, 1206 (9th Cir.
2016) (Title VII hostile work environment claim requires plaintiff to establish that
conduct was “sufficiently severe or pervasive to alter the conditions of [his]
employment and create an abusive working environment”).
The district court did not abuse its discretion by denying Leyba a second
opportunity to amend because Leyba did not make such a request and failed to
identify facts that could cure the deficiencies in his complaint. See D. Nev. R.
15-1; Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir. 2013) (no abuse of
discretion to deny further leave to amend where plaintiff failed to identify facts that
could cure the deficiencies in the complaint); AE ex rel. Hernandez, 666 F.3d at
636 (setting forth standard of review and explaining that district court may deny
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leave to amend where proposed amendments would be futile).
AFFIRMED.
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