Muhammad Toure v. Cdcr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MUHAMMAD TOURE, No. 18-55961
Plaintiff-Appellant, D.C. No. 5:16-cv-01983-RGK-SHK
v.
MEMORANDUM*
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted July 15, 2019**
Before: SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.
Muhammad Toure appeals pro se from the district court’s judgment in his
federal employment action. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo. DB Healthcare, LLC v. Blue Cross Blue Shield of Ariz., Inc., 852
*
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).
F.3d 868, 873 n.5 (9th Cir. 2017) (dismissal under Fed. R. Civ. P. 12(b)(1) and
12(b)(6)); Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011)
(summary judgment). We affirm.
The district court properly granted summary judgment on Toure’s retaliation
claims because Toure failed to raise a genuine dispute of material fact as to
whether his 48-day suspension was in response to protected conduct, or as to
whether his 60-day suspension was pretextual. See Learned v. City of Bellevue,
860 F.2d 928, 932 (9th Cir. 1988) (“[O]pposed conduct must fairly fall within the
protection of Title VII to sustain a claim of unlawful retaliation.”); see also
Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997) (granting summary
judgment because, although “the timing of the[] events suffice[d] to establish a
minimal prima facie case of retaliation, it d[id] nothing to refute” the employer’s
stated legitimate reasons for disciplining the plaintiff).
The district court properly dismissed Toure’s Fourteenth Amendment
claims, and his Title VII discrimination and harassment claims, because Toure
failed to allege facts sufficient to state a plausible claim. 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 to state a plausible
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claim for relief); see also Vasquez v. County of Los Angeles, 349 F.3d 634, 640-42
(9th Cir. 2003) (setting forth prima facie cases of discrimination and harassment
under Title VII); Douglas v. Cal. Dep’t of Youth Auth., 271 F.3d 812, 817 (9th Cir.
2001) (“States are protected by the Eleventh Amendment from suits brought by
citizens in federal court.”).
The district court did not abuse its discretion by denying Toure’s motion to
file a second amended complaint because allowing Toure to add defendants who
had previously been dismissed due to Toure’s failure to serve them would have
been prejudicial, and because his other proposed amendments failed to state a
claim. See Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 879-80 (9th Cir. 1999)
(setting forth standard of review and explaining that the district court may deny
leave to amend for “bad faith, undue delay, prejudice to the opposing party, and/or
futility”).
AFFIRMED.
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