Cassandra Olague v. County of Sacramento , 601 F. App'x 557 ( 2015 )

FILED
NOT FOR PUBLICATION MAY 01 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CASSANDRA C. OLAGUE, No. 13-16882
Plaintiff - Appellant, D.C. No. 2:11-cv-00331-LKK-
EFB
v.
COUNTY OF SACRAMENTO; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, District Judge, Presiding
Submitted April 22, 2015**
Before: GOODWIN, BYBEE, and CHRISTEN, Circuit Judges.
Cassandra C. Olague appeals pro se from the district court’s judgment
dismissing her action alleging federal and state law violations in connection with
child custody and visitation. We have jurisdiction under 28 U.S.C. § 1291. We
*
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).
review de novo a dismissal for failure to state a claim. Knox v. Davis, 260 F.3d
1009, 1012 (9th Cir. 2001). We affirm.
The district court properly dismissed Olague’s substantive due process claim
pertaining to child custody as barred by the statute of limitations. See Cal. Civ.
Proc. Code § 335.1 (two-year statute of limitations for personal injury actions);
Knox, 260 F.3d at 1012-13 (for § 1983 claims, federal courts apply the forum
state’s personal injury statute of limitations and apply federal law to determine
accrual; a § 1983 claim accrues when the plaintiff knows or has reason to know of
the injury that forms the basis of the action).
The district court properly dismissed Olague’s due process claims pertaining
to visitation, and her equal protection claim pertaining to child custody, because
Olague failed to allege facts sufficient to show that any state actor deprived her of
visits or intentionally discriminated against her on the basis of race or ethnicity.
See Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 1149 (9th Cir. 2011)
(“To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right
secured by the Constitution and laws of the United States, and (2) that the
deprivation was committed by a person acting under color of state law.”); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to avoid dismissal, “a complaint must
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contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face” (internal quotation marks omitted)).
The district court properly dismissed Olague’s § 1983 claims against the
County because Olague failed to allege facts sufficient to show that a constitutional
violation had occurred. See Jackson v. City of Bremerton, 268 F.3d 646, 653-54
(9th Cir. 2001) (no municipality liability under § 1983 where no constitutional
violation has occurred).
The district court properly dismissed Olague’s § 1986 claim because Olague
failed to state a § 1985 claim. See Karim–Panahi v. Los Angeles Police Dep’t.,
839 F.2d 621, 626 (9th Cir. 1988) (“A claim can be stated under section 1986 only
if the complaint contains a valid claim under section 1985.”); see also United Bhd.
of Carpenters & Joiners of Am. v. Scott, 463 U.S. 825, 828-29 (1983) (to establish
a violation of § 1985(3), a plaintiff must allege a conspiracy motivated by racial or
other class-based animus).
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).
AFFIRMED.
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