Stewart v. California Deptartment of Education , 493 F. App'x 889 ( 2012 )

FILED
NOT FOR PUBLICATION SEP 20 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JASON P. STEWART; et al., No. 10-55282
Plaintiffs - Appellants, D.C. No. 3:07-cv-00971-MMA-
WVG
v.
CALIFORNIA DEPARTMENT OF MEMORANDUM *
EDUCATION; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Submitted September 10, 2012 **
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Jason P. Stewart, Caitlin N. Stewart, and their mother Lindsey E. Stewart
appeal pro se from the district court’s judgment dismissing their claims under 42
U.S.C. § 1983, the Individuals with Disabilities Education Act (“IDEA”), the
*
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).
Americans with Disabilities Act (“ADA”), and § 504 of the Rehabilitation Act, as
well as from the district court’s order declaring Lindsey Stewart a vexatious
litigant and imposing a pre-filing injunction. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo a dismissal for failure to state a claim, Berg v.
Popham, 412 F.3d 1122, 1125 (9th Cir. 2005), and for an abuse of discretion
vexatious litigant and pre-filing order determinations, Molski v. Evergreen Dynasty
Corp., 500 F.3d 1047, 1056 (9th Cir. 2007) (per curiam). We may affirm on any
basis supported by the record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d
1116, 1121 (9th Cir. 2007). We affirm in part, vacate in part, and remand.
The district court properly dismissed the claims against defendants Poway
Unified School District, Phillips, and Shieh as barred by res judicata. See Tahoe-
Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1077-
78 (9th Cir. 2003) (setting forth elements of res judicata).
The district court properly dismissed the § 1983 claims against the law firm
defendants and defendant Keenan & Associates because the complaint failed to
allege state action. See Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) (for
non-state actors to be liable under § 1983 for conspiring with state actors, plaintiff
must show an agreement or meeting of the minds to violate his or her
constitutional rights).
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Dismissal of the § 1983 claim against defendant Slavik as barred by the
statute of limitations was proper because the action was not brought within two
years of Slavik’s alleged conduct. See Canatella v. Van De Kamp, 486 F.3d 1128,
1132 (9th Cir. 2007) (forum state’s statute of limitations for personal injury
actions, which is two years in California, applies to § 1983 claims).
The district court properly dismissed the § 1983 claims against defendants
California Department of Education (“CDE”) and O’Connell because the Stewarts
failed to state cognizable claims. See Long v. County of Los Angeles, 442 F.3d
1178, 1185 (9th Cir. 2006) (“To state a claim under § 1983, a plaintiff must allege .
. . that a right secured by the Constitution or laws of the United States was
violated.”); see also Blanchard v. Morton Sch. Dist., 509 F.3d 934, 937-38 (9th
Cir. 2007) (§ 1983 is not available to remedy violations of the IDEA).
The district court properly dismissed the ADA and Rehabilitation Act claims
against the individual defendants in their individual capacities, the law firm
defendants, and Keenan & Associates. See Vinson v. Thomas, 288 F.3d 1145,
1156 (9th Cir. 2002) (individuals cannot be sued in their individual capacities
under § 1983 for violations of § 504 of the Rehabilitation Act or Title II of the
ADA); Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169, 1180 (9th Cir. 1999)
(private entities are not subject to Title II of the ADA, and are subject to
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Rehabilitation Act only if they receive federal financial assistance); see also U.S.
Dep’t of Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 606-10 (1986)
(indirect recipients of federal funds are not cognizable defendants under the
Rehabilitation Act).
The district court properly dismissed the ADA and Rehabilitation Act claims
against CDE and O’Connell, and the IDEA claims against all defendants, because
the amended complaint does not allege facts demonstrating that Jason exhausted
his administrative remedies in relation to these claims, or that exhaustion was
futile. See Kutasi v. Las Virgenes Unified Sch. Dist., 494 F.3d 1162, 1167 (9th Cir.
2007) (explaining IDEA exahustion requirements).
The district court did not abuse its discretion in declining to exercise
jurisdiction over the Stewarts’ state law claims. See 28 U.S.C. § 1367(c)(3); Ove v.
Gwinn, 264 F.3d 817, 826 (9th Cir. 2001).
However, we cannot properly review the district court’s determination that
Lindsey Stewart is a vexatious litigant who should be subject to a pre-filing order
because the record does not appear to be adequately developed. See Molski, 500
F.3d at 1057 (district court must, among other things, compile an adequate record
for review before entering a pre-filing order, which is “an extreme remedy” to be
entered “only after a cautious review of the pertinent circumstances”). For
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example, we are not able to tell from the record whether the four state court actions
on which the district court relied were, in fact, dismissed; whether those actions,
which were all filed on the same day, were consolidated into one action, as
contended by the Stewarts; and whether Jason Stewart was represented by counsel
in those actions. See id.; see also 28 U.S.C. § 1651; Cal. Code Civ. P. § 391(b)(1).
Accordingly, we vacate and remand to the district court for further consideration of
its pre-filing determination.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, nor 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).
The Stewarts’ motion to supplement briefing is granted.
Each party shall bear its own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
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