Danilo Mallari v. Tracy Vessigault ( 2016 )

FILED
NOT FOR PUBLICATION NOV 21 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANILO MALLARI, No. 14-16613
Plaintiff-Appellant, D.C. No. 4:13-cv-04038-CW
v.
MEMORANDUM*
TRACY VESSIGAULT; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding
Submitted November 16, 2016**
Before: LEAVY, BERZON, and MURGUIA, Circuit Judges.
Danilo Mallari appeals pro se from the district court’s order dismissing his
42 U.S.C. § 1983 action alleging federal and state law violations in connection
with the revocation of his company’s home health care agency license. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Harkonen v. U.S. Dep’t
*
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).
of Justice, 800 F.3d 1143, 1148 (9th Cir. 2015) (dismissal under Fed. R. Civ. P.
12(b)(6)); Viewtech, Inc. v. United States, 653 F.3d 1102, 1103-04 (9th Cir. 2011)
(dismissal under Fed. R. Civ. P. 12(b)(1)). We affirm in part, reverse in part, and
remand.
The district court properly dismissed Mallari’s negligence and intentional
infliction of emotional distress claims because Mallari failed to allege facts
sufficient to state plausible claims. See Sabow v. United States, 93 F.3d 1445,
1454 (9th Cir. 1996) (claim for intentional infliction of emotional distress under
California law requires inter alia “extreme and outrageous conduct by the
defendant” (citation and internal quotation marks omitted)); see generally Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.”).
The district court dismissed Mallari’s § 1983 claim for lack of standing
because Mallari failed to allege that he was injured directly and independently of
Medhealth Nursing, LLC (“Medhealth”). However, in the Second Amended
Complaint, Mallari alleged that defendants’ conduct violated his own Fourteenth
Amendment rights. See RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1057
(9th Cir. 2002) (shareholders of corporation alleged personal injury sufficient to
confer § 1983 standing because they alleged violations of their own Fourteenth
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Amendment rights); Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1318-19
(9th Cir. 1989) (shareholder of corporation had § 1983 standing to bring First
Amendment claim because the right that was allegedly violated belonged to the
shareholder). Accordingly, we reverse the district court’s dismissal of the § 1983
claim for lack of standing, and remand for further proceedings as to that claim
only.
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).
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, REMANDED.
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