Gerald Flunder, Jr. v. Arizona Board of Regents , 687 F. App'x 614 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERALD L. FLUNDER, Jr., No. 14-15906
Plaintiff-Appellant, D.C. No. 2:13-cv-01893-DGC
v.
MEMORANDUM*
ARIZONA BOARD OF REGENTS, a
public entity; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted April 11, 2017**
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
Gerald L. Flunder, Jr., appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. §§ 1981, 1983 and 1985 action alleging racial
discrimination and retaliation. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo. Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1005 (9th Cir.
*
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).
2011) (dismissal on the basis of the statute of limitations); Romano v. Bible, 169
F.3d 1182, 1185 (9th Cir. 1999) (dismissal for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6)). We affirm.
The district court properly dismissed Flunder’s claims under §§ 1981, 1983
and 1985, other than his § 1981 retaliation claim, on the basis of the applicable
statute of limitations because the claims accrued more than two years before
Flunder filed this action. See TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir.
1999) (stating that a § 1983 claim is subject to Arizona’s two-years statute of
limitations for personal injury claims and “accrues when the plaintiff knows or has
reason to know of the injury which is the basis of the action”); Taylor v. Regents of
the Univ. of Cal., 993 F.2d 710, 711-12 (9th Cir. 1993) (the limitations period that
governs § 1983 claims also governs claims under §§ 1981 and 1985); see also
Johnson, 653 F.3d at 1007 (recognizing that “some § 1981 claims continue to be
subject to the most analogous state statute of limitations”).
Dismissal of Flunder’s retaliation claim under § 1981 was proper because
Flunder failed to allege facts sufficient to state a plausible claim for relief. See
Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings
are to be construed liberally, a plaintiff must present factual allegations sufficient
2 14-15906
to state a plausible claim for relief); Manatt v. Bank of Am., NA, 339 F.3d 792, 800
(9th Cir. 2003) (elements of a § 1981 retaliation claim).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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