Tami Henry v. Universal Technical Institute , 559 F. App'x 648 ( 2014 )

FILED
NOT FOR PUBLICATION MAR 03 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TAMI E. HENRY, No. 13-15139
Plaintiff - Appellant, D.C. No. 2:11-cv-01773-FJM
v.
MEMORANDUM*
UNIVERSAL TECHNICAL INSTITUTE;
et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Submitted February 18, 2014**
Before: ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.
Tami E. Henry appeals pro se from the district court’s judgment in his action
alleging, among other things, violations of Title VI of the Civil Rights Act of 1964
arising from his experiences as a student at Universal Technical Institute (“UTI”).
*
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).
We have jurisdiction under 28 U.S.C. § 1291. We review de novo both summary
judgment and the dismissal of claims. Doe v. Abbott Labs., 571 F.3d 930, 933 (9th
Cir. 2009). We may affirm on any ground supported by the record, Thompson v.
Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008), and we affirm.
The district court properly granted summary judgment on Henry’s Title VI
claim alleging that UTI did not allow Henry to makeup or retake a test because
Henry failed to raise a genuine dispute of material fact as to whether UTI’s refusal
constituted racial or national origin discrimination. See Fobbs v. Holy Cross
Health Sys. Corp., 29 F.3d 1439, 1447 (9th Cir. 1994) (Title VI requirements),
overruled on other grounds by Daviton v. Columbia/HCA Healthcare Corp., 241
F.3d 1131 (9th Cir. 2001) (en banc); see also Cafasso, U.S. ex rel. v. Gen.
Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir. 2011) (“To survive
summary judgment, a plaintiff must set forth non-speculative evidence of specific
facts, not sweeping conclusory allegations.”).
The district court properly dismissed Henry’s remaining Title VI claims
because Henry failed to allege facts showing that he suffered any injury by the
alleged playing of the confederate anthem, or that defendants’ other alleged
conduct constituted racial or national origin discrimination. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (requirements to establish
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standing); Fobbs, 29 F.3d at 1447 (Title VI requirements).
The district court properly dismissed Henry’s Fourteenth Amendment claims
because Henry failed to allege facts showing that defendants acted under color of
state law. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982) (“Because
the [Fourteenth] Amendment is directed at the States, it can be violated only by
conduct that may be fairly characterized as ‘state action.’”).
The district court properly dismissed Henry’s claims under the Family
Educational Rights and Privacy Act (“FERPA”) and 18 U.S.C. § 371 because these
statutes do not provide for a private right of action. See Gonzaga Univ. v. Doe, 536
U.S. 273, 287 (2002) (no private right of action to enforce FERPA); Aldabe v.
Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (per curiam) (affirming dismissal of
claims brought under criminal provisions that “provide[d] no basis for civil
liability”).
The district court properly dismissed Henry’s 42 U.S.C. § 1985(3) claim
because Henry failed to allege facts showing that a discriminatory animus
motivated the alleged conspiracy to deprive him of his rights. See Sever v. Alaska
Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992) (elements of § 1985(3) claim,
including racial or other class-based animus).
The district court properly dismissed Henry’s Age Discrimination Act claim
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because Henry failed to allege facts showing that he complied with the
prerequisites to file a claim under the Act. See 42 U.S.C. § 6104(e) (prerequisites
to bringing a claim under the Age Discrimination Act).
The district court properly dismissed Henry’s claim alleging retaliation
under the Americans with Disabilities Act because Henry failed to allege facts
showing that he was disabled within the meaning of the Act. See 42 U.S.C.
§§ 12102 (definition of “disability”), 12203 (prohibiting retaliation under the
Americans with Disabilities Act).
Dismissal of Henry’s Safe Schools Act claim was proper because Henry
failed to allege facts showing that UTI is a “local educational agenc[y].” 20 U.S.C.
§§ 5962(a)(1), 7801(26)(A).
The district court properly dismissed Henry’s state law claims because
Henry failed to allege facts showing the required elements. See Ford v. Revlon,
Inc., 734 P.2d 580, 585 (Ariz. 1987) (elements of intentional infliction of
emotional distress under Arizona law); Echols v. Beauty Built Homes, Inc., 647
P.2d 629, 631 (Ariz. 1982) (elements of fraud under Arizona law); Johnson v.
Davis, 178 S.W.3d 230, 240 (Tex. App. 2005) (civil assault under Texas law).
The district court did not abuse its discretion by denying Henry’s motions to
recuse the district court judge, compel discovery, proceed in forma pauperis, or for
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default judgment, or by granting defendants’ motion for discovery sanctions. See
Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008) (standard of review for
recusal motion); Childress v. Darby Lumber, Inc., 357 F.3d 1000, 1009-10 (9th
Cir. 2004) (standard of review for discovery issues, including discovery sanctions);
O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990) (standard of review for in
forma pauperis request); Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986)
(setting forth standard of review and factors for determining whether to enter
default judgment).
Henry’s contention that the district court erred by denying his motion to
require the U.S. Attorney General to intervene under Fed. R. Civ. P. 24 is
unpersuasive.
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).
Defendants’ requests to strike Henry’s exhibits that are not part of the
district court record, filed on August 29, 2013, September 30, 2013, and January
27, 2014, are granted. Henry’s motion for a temporary injunction, filed on January
17, 2014, is denied as moot. All other pending motions and requests are denied.
AFFIRMED.
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