Wendell O'Neal v. Empire Fire and Marine Ins. ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WENDELL DWAYNE O’NEAL, Nos. 17-17282
18-15591
Plaintiff-Appellant,
D.C. No. 2:16-cv-02313-JCM-
v. CWH
EMPIRE FIRE AND MARINE
INSURANCE COMPANY; et al., MEMORANDUM*
Defendants-Appellees.
Appeals from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted August 15, 2018**
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
In these consolidated appeals, Wendell Dwayne O’Neal appeals pro se from
the district court’s judgment dismissing his action alleging federal and state law
claims, and its post-judgment order imposing a pre-filing restriction on him as a
vexatious litigant. We have jurisdiction under 28 U.S.C. § 1291. We review de
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
novo a dismissal under Federal Rule of Civil Procedure 12(b)(6). Hebbe v. Pliler,
627 F.3d 338, 341 (9th Cir. 2010). We may affirm on any basis supported by the
record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir.
2008). We affirm in part and vacate in part.
Dismissal of O’Neal’s federal claims was proper because O’Neal failed to
allege facts sufficient to state a plausible claim. See Hebbe, 627 F.3d at 341-42(although pro se pleadings are construed liberally, a plaintiff must present factual
allegations sufficient to state a plausible claim for relief); see also West v. Atkins,
487 U.S. 42, 48 (1988) (elements of a § 1983 claim); Lindsey v. SLT L.A., LLC,
447 F.3d 1138, 1145 (9th Cir. 2006) (elements of a § 1981 claim outside of an
employment context); Thornton v. City of St. Helens, 425 F.3d 1158, 1168-69 (9th
Cir. 2005) (the absence of a deprivation of rights under § 1983 precludes a
§ 1985(3) claim premised on the same allegations); Trerice v. Pedersen, 769 F.2d
1398, 1403 (9th Cir. 1985) (no cause of action under § 1986 absent a valid § 1985
claim).
The district court properly dismissed O’Neal’s intentional infliction of
emotional distress (“IIED”) claim because O’Neal failed to allege facts sufficient
to show extreme or outrageous conduct. See Nelson v. City of Las Vegas, 665 P.2d
1141, 1145 (Nev. 1983) (per curiam) (elements of an IIED claim under Nevada
law).
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The district court found that O’Neal filed numerous frivolous motions in this
action that unnecessarily delayed the proceedings, and observed that O’Neal had
been declared a vexatious litigant in state court. However, the district court did not
make explicit substantive findings as to the frivolousness of O’Neal’s prior filings
or narrowly tailor the scope of its pre-filing order. See Molski v. Evergreen
Dynasty Corp., 500 F.3d 1047, 1056-61 (setting forth standard of review and
describing federal requirements for a pre-filing order based on a vexatious litigant
determination). We therefore vacate the district court’s April 4, 2018 order to the
extent that it deems O’Neal a vexatious litigant and imposes a pre-filing restriction.
In all other respects, we affirm.
We reject as without merit O’Neal’s contentions regarding the district
court’s jurisdiction to rule on defendants’ post-judgment motion to designate
O’Neal a vexatious litigant and judicial bias.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009), and
we do not consider arguments incorporated by reference into the briefs, see Indep.
Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003).
All pending motions and requests are denied.
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part.
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