Luis Acosta v. City of Phoenix , 618 F. App'x 325 ( 2015 )

FILED
NOT FOR PUBLICATION SEP 28 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS ACOSTA, No. 13-16993
Plaintiff - Appellant, D.C. No. 2:13-cv-00484-SRB
v.
MEMORANDUM*
CITY OF PHOENIX; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Submitted September 21, 2015**
Before: REINHARDT, LEAVY, and BERZON, Circuit Judges.
Luis Acosta appeals from the district court’s judgment dismissing his action
brought under Title VII and 42 U.S.C. § 1983 alleging constructive discharge and
other claims. We have jurisdiction under 28 U.S.C. § 1291. We review for an
abuse of discretion a dismissal for failure to comply with a court order, Yourish v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Cal. Amplifier, 191 F.3d 983, 989 (9th Cir. 1999), and we affirm.
The district court did not abuse its discretion by dismissing Acosta’s action
because Acosta failed to comply with the district court’s order instructing him to
file an amended complaint. See id. at 990 (discussing the five factors for
determining whether to dismiss for failure to comply with a court order); see also
Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004) (explaining that
a plaintiff’s failure to amend his complaint or notify the court of his intent to stand
on an unamended complaint justifies dismissal under Fed. R. Civ. P. 41(b)).
The district court properly dismissed Acosta’s constructive discharge claim
because Acosta failed to allege facts sufficient to show that he complied with
mandatory state notice requirements. See Hebbe v. Pliler, 627 F.3d 338, 341-34
(setting forth standard of review and explaining that although pro se pleadings are
to be liberally construed, a plaintiff must still present factual allegations sufficient
to state a plausible claim for relief); see also Falcon ex rel. Sandoval v. Maricopa
County, 144 P.3d 1254, 1256 (Ariz. 2006) (en banc) (“Actual notice and
substantial compliance do not excuse failure to comply with the statutory
requirements of [Ariz. Rev. Stat.] § 12-821.01(A).”); Barth v. Cochise County,
Arizona, 138 P.3d 1186, 1190 (Ariz. Ct. App. 2006) (compliance with the terms of
both Ariz. Rev. Stat. §§ 23-1502 and 12-821.01 is required before filing a
2 13-16993
constructive discharge action against a public entity). We reject Acosta’s
contentions that the district court’s order dismissing his constructive discharge
claim violated his due process rights. See Lacey v. Maricopa County, 693 F.3d
896, 928 (9th Cir. 2012) (en banc) (“For claims dismissed with prejudice and
without leave to amend, we will not require that they be repled in a subsequent
amended complaint to preserve them for appeal.”).
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) (per curiam).
All pending motions and requests are denied.
AFFIRMED.
3 13-16993