Janie Pinkney v. American Medical Response, Inc

FILED
NOT FOR PUBLICATION MAR 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JANIE ALINE PINKNEY, No. 11-15910
Plaintiff - Appellant, D.C. No. 2:08-cv-01257-RLH-
GWF
v.
AMERICAN MEDICAL RESPONSE, MEMORANDUM *
INC.; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, District Judge, Presiding
Submitted January 11, 2013 **
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
Janie Aline Pinkney appeals pro se from the district court’s judgment in her
action alleging employment and racial discrimination in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1983,
*
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).
1985 and 1986. We have jurisdiction under 28 U.S.C. § 1291. We review de novo
a dismissal for failure to state a claim, Trerice v. Pedersen, 769 F.2d 1398, 1400
(9th Cir. 1985), and summary judgment, Leong v. Potter, 347 F.3d 1117, 1123 (9th
Cir. 2003). We affirm.
The district court properly dismissed Pinkney’s claims under 42 U.S.C.
§ 1983 against defendants American Medical Response, Inc. (“AMR”), the AMR
employees, Emergency Medical Services Corporation, and Service Employees
International Union, Local 1107 (“Local 1107”) because Pinkney failed to allege
facts sufficient to show that these defendants or their employees acted under color
of state law. See Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006) (to
state a claim under § 1983, a plaintiff must allege that a person “acting under color
of state law” committed the conduct at issue).
The district court properly dismissed Pinkney’s claims under 42 U.S.C.
§ 1983 against defendant Southern Nevada Health District (“SNHD”) because
Pinkney failed to allege that SNHD had a deliberate policy, custom, or practice that
caused the alleged constitutional violation. See Monell v. Dep’t of Social Services,
436 U.S. 658, 691-95 (1978); Galen v. County of Los Angeles, 477 F.3d 652, 667
(9th Cir. 2007) (a municipal entity is liable under § 1983 only if the
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unconstitutional conduct is caused by a municipal policy or custom, or by a failure
to train officials).
The district court properly dismissed Pinkney’s claims under 42 U.S.C.
§§ 1985 and 1986 against all defendants because Pinkney failed to allege facts
sufficient to show a conspiracy to discriminate against her on race or other class-
based grounds. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 626
(9th Cir. 1988) (an allegation of a § 1985 conspiracy without factual specificity is
insufficient); Trerice, 769 F.2d at 1403 (§ 1986 claim must be premised on valid
§ 1985 claim).
The district court properly dismissed Pinkney’s claim against defendant
Local 1107 for breach of the duty of fair representation because Pinkney’s
allegations that Local 1107 failed to communicate with her for a discriminatory
reason are entirely conclusory. See Abagninin v. AMVAC Chem. Corp., 545 F.3d
733, 742 (9th Cir. 2008) (conclusory allegations of law are insufficient to defeat a
motion to dismiss for failure to state a claim); see also Peterson v. Kennedy, 771
F.2d 1244, 1253 (9th Cir. 1985) (complaint dismissed when plaintiff failed to
allege facts sufficient to show the union’s conduct was arbitrary, discriminatory, or
in bad faith).
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The district court properly dismissed Pinkney’s Title VII claims against
defendant Emergency Medical Services Corporation because Pinkney failed to
allege any special circumstances that would justify liability for any Title VII
violations by its wholly-owned subsidiary. See Assn. of Mexican-Am. Educators v.
State of Cal., 231 F.3d 572, 582 (9th Cir. 2000).
The district court properly granted summary judgment on Pinkney’s Title
VII disparate treatment claim against AMR because Pinkney failed to raise a
genuine dispute of material fact as to whether she performed her job satisfactorily,
whether similarly situated individuals outside her protected class were treated more
favorably, or whether AMR’s legitimate, nondiscriminatory reasons for its actions
were pretextual. See Leong, 347 F.3d at 1124-25.
The district court properly granted summary judgment on Pinkney’s § 1983
claims against Rory Chetelat and Stephen Minagil because Pinkney failed to
provide evidence raising a genuine dispute of material fact as to as to whether she
was intentionally treated differently from similarly situated persons. See Thornton
v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th Cir. 2005).
We reject Pinkney’s remaining contentions, including that the district court
abused its discretion in denying her motions to reconsider and that defendants’
attorneys engaged in misconduct. We do not consider Pinkney’s contentions
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raised for the first time on appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th
Cir. 1999).
We deny defendants Chetelat and Minagil’s request for attorneys’ fees under
42 U.S.C. § 1988.
AFFIRMED.
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