Charles Stringer v. Robert Woolsey , 495 F. App'x 838 ( 2012 )

FILED
NOT FOR PUBLICATION NOV 07 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CHARLES LAVEL STRINGER, No. 11-15604
Plaintiff - Appellant, D.C. No. 2:10-cv-00048-KJD-PAL
v.
MEMORANDUM *
ROBERT WOOLSEY; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted October 10, 2012 **
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
Charles Lavel Stringer appeals pro se from the district court’s judgment
dismissing his action alleging various federal and state law violations in connection
with his arrest for driving under the influence. We have jurisdiction under 28
*
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).
U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. § 1915(e), Barren
v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), and for an abuse of discretion
a dismissal for failure to serve the summons and complaint in a timely manner,
Oyama v. Sheehan (In re Sheehan), 253 F.3d 507, 511 (9th Cir. 2001). We may
affirm on any ground supported by the record. See Thompson v. Paul, 547 F.3d
1055, 1058-59 (9th Cir. 2008). We affirm.
The district court properly dismissed Stringer’s claims under 42 U.S.C.
§ 1981 because Stringer failed to allege facts sufficient to show that he suffered
discrimination on the basis of race or ethnicity. See Johnson v. Riverside
Healthcare Sys., LP, 534 F.3d 1116, 1123 (9th Cir. 2008) (Ҥ 1981 creates a cause
of action only for those discriminated against on account of their race or
ethnicity.”).
The district court properly dismissed Stringer’s claims under 42 U.S.C.
§ 1985 because Stringer failed to allege facts sufficient to show a conspiracy to
interfere with a federal officer’s duties, to obstruct judicial proceedings, or to
discriminate against him on race or other class-based grounds. See Bretz v.
Kelman, 773 F.2d 1026, 1027-28 & n.3 (9th Cir. 1985) (en banc) (listing elements
of § 1985 claim).
2 11-15604
The district court properly dismissed Stringer’s § 1983 claims against
defendants Printy and Doe because Stringer failed to allege facts sufficient to show
that these defendants 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 Stringer’s § 1983 claims against
defendants Finn, Tohler, and Chambers because Stringer failed to allege facts
sufficient to show these defendants’ personal participation or the existence of a
custom, policy, or practice caused him injury. See Brandon v. Holt, 469 U.S. 464,
471-73 (1985) (a claim against a public official in his or her official capacity is the
same as a claim against the governmental entity); Galen v. County of Los Angeles,
477 F.3d 652, 667 (9th Cir. 2007) (a municipality is liable under § 1983 only if the
unconstitutional conduct is caused by a municipal policy or custom, or by a failure
to train officials properly); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)
(“Liability under section 1983 arises only upon a showing of personal participation
by the defendant.”).
Dismissal of Stringer’s mail fraud and wire fraud claims was proper because
Stringer failed to allege facts sufficient to show that defendants’ conduct
3 11-15604
constituted an actionable injury. See Abagninin v. AMVAC Chem. Corp., 545 F.3d
733, 742 (9th Cir. 2008) (conclusory allegations of law are insufficient to state a
claim).
Dismissal of Stringer’s state law claims was proper because Stringer’s
allegations failed to allege sufficient facts to state a plausible claim for relief. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The district court did not abuse its discretion in dismissing without prejudice
Stringer’s § 1983 claims against defendant Woolsey because Stringer failed to
effect proper service of the summons and complaint. See Fed. R. Civ. P. 4(e), (m)
(describing proper methods for service of process on an individual and requiring
service within 120 days after the complaint is filed); Nev. R. Civ. P. 4(d)(6)
(setting forth requirements of service on individuals under Nevada state law); In re
Sheehan, 253 F.3d at 512.
Stringer’s contentions concerning the district judge’s alleged bias and the
district court’s decision to set aside the entry of default are unpersuasive.
Stringer’s request for appointment of counsel is denied as moot.
AFFIRMED.
4 11-15604