Pryor v. Heart N Soul Tax Services of Vallejo, Inc. , 402 F. App'x 276 ( 2010 )

FILED
NOT FOR PUBLICATION NOV 02 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARLON JOHNSON PRYOR, No. 09-55730
Plaintiff - Appellant, D.C. No. 3:07-cv-00424-MMA-
JMA
v.
HEART N SOUL TAX SERVICES OF MEMORANDUM *
VALLEJO, INC., DBA Jackson Hewitt
Tax Service; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Submitted October 19, 2010 **
Before: O’SCANNLAIN, LEAVY, and TALLMAN, Circuit Judges.
Marlon Johnson Pryor appeals pro se from the district court’s judgment
dismissing his Title VII action. We have jurisdiction under 28 U.S.C. § 1291. We
*
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).
review de novo. Edwards v. Marin Park, Inc., 356 F.3d 1058, 1061 (9th Cir.
2004). We affirm.
The district court properly dismissed Pryor’s hostile work environment
claim because he did not allege facts suggesting that his co-workers’ conduct was
based on his race or gender, or that it was sufficiently severe or pervasive to alter
the conditions of his employment. See Surrell v. Cal. Water Serv. Co., 518 F.3d
1097, 1108-09 (9th Cir. 2008).
The district court properly dismissed Pryor’s retaliation claim because he did
not sufficiently allege facts suggesting that he complained about conduct
prohibited by Title VII before being terminated or otherwise subjected to an
adverse action. See Learned v. City of Bellevue, 860 F.2d 928, 932-33 (9th Cir.
1988) (Title VII retaliation claim fails where plaintiff did not complain about
conduct prohibited by Title VII); see also Entm’t Research Grp., Inc. v. Genesis
Creative Grp., Inc., 122 F.3d 1211, 1217 (9th Cir. 1997) (judges are not obliged to
dig through the record to find support for a party’s claims).
The district court did not abuse its discretion by dismissing the first amended
complaint without leave to amend after concluding that further amendment would
be futile. See Chaset v. Fleer/Skybox Int’l, 300 F.3d 1083, 1087-88 (9th Cir. 2002)
(dismissal without leave to amend is not an abuse of discretion where further
2 09-55730
amendment would be futile); Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1051-52
(9th Cir. 2008) (amendment futile where plaintiffs filed an amended complaint
containing the same defects as their original complaint).
To the extent Pryor sought default judgments against any defendants, the
district court did not abuse its discretion by refusing to grant this relief after
concluding Pryor’s claims lacked merit. See Aldabe v. Aldabe, 616 F.2d 1089,
1092-93 (9th Cir. 1980) (per curiam). Moreover, contrary to Pryor’s contention,
the record does not indicate that Heart N Soul Tax Services of Vallejo, Inc. and
Pacific Capital Bancorp were properly served. See Fed. R. Civ. P. 4(h)(1); Barlow
v. Ground, 39 F.3d 231, 234 (9th Cir. 1994) (service by mail in California is valid
only if a signed acknowledgment is returned).
Pryor’s remaining contentions are unpersuasive.
We lift the stay as to appellee Heart N Soul Tax Services of Vallejo, Inc.
AFFIRMED.
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