Marlene Ziya v. Global Linguistic Solution , 645 F. App'x 573 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 23 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARLENE ZIYA, No. 13-36158
Plaintiff - Appellant, D.C. No. 3:11-cv-01398-MO
v.
MEMORANDUM*
GLOBAL LINGUISTIC SOLUTION; et
al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted March 15, 2016**
Before: GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.
Marlene Ziya appeals pro se from the district court’s judgment dismissing
her action alleging federal and state law claims arising out of her employment as a
translator in Iraq. We have jurisdiction under 28 U.S.C. § 1291. We review de
*
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).
novo. Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010) (dismissal for failure to
state a claim under Fed. R. Civ. P. 12(b)(6)); Vinieratos v. United States Dep’t of
Air Force, 939 F.2d 762, 768 (9th Cir. 1991) (dismissal for failure to exhaust
administrative remedies). We affirm.
The district court properly dismissed Ziya’s state law claims against Global
Linguistic Solution LLC because Ziya failed to allege facts sufficient to state a
plausible claim for relief. See Hebbe, 627 F.3d at 341-42 (although pro se
pleadings are to be liberally construed, a plaintiff must present factual allegations
sufficient to state a plausible claim for relief); see also Lacey v. Maricopa County,
693 F.3d 896, 928 (9th Cir. 2012) (en banc) (“[F]or any claims voluntarily
dismissed, we will consider those claims to be waived if not repled.”); Shroyer v.
New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1042 (9th Cir. 2010)
(requirements for pleading fraud with particularity); McGanty v. Staudenraus, 901
P.2d 841, 849 (Or. 1995) (en banc) (elements of claim for intentional infliction of
emotional distress).
The district court properly dismissed Ziya’s Title VII claims because Ziya
failed to allege that she exhausted her administrative remedies. See Sommatino v.
United States, 255 F.3d 704, 707 (9th Cir. 2001) (“In order to bring a Title VII
claim in district court, a plaintiff must first exhaust her administrative remedies.”).
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Moreover, the district court did not abuse its discretion in determining that Ziya
was not entitled to equitable relief. See Leong v. Potter, 347 F.3d 1117, 1122-23
(9th Cir. 2003) (standard of review; requirements for equitable estoppel and
tolling); see also Sommatino, 255 F.3d at 710 (“[E]quitable remedies are
unavailable in federal court when the record shows that no administrative filing
was ever made.”).
The district court did not abuse its discretion in concluding that amendment
to add the Secretary of the Army would be futile because Ziya failed to exhaust.
See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir.
2011) (standard of review; explaining dismissal without leave to amend is proper
when amendment would be futile).
The district court did not err in substituting in the United States as a
defendant. See 28 U.S.C. § 2679(d) (“Upon certification by the Attorney General
that the defendant employee was acting within the scope of his office or
employment at the time of the incident out of which the claim arose, . . . the United
States shall be substituted as the party defendant.”). Moreover, the district court
did not abuse its discretion in denying Ziya’s motion to reconsider. See Sch. Dist.
No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993)
(standard of review and grounds for reconsideration).
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We reject as unsupported Ziya’s contentions that the case should be
transferred back to the District of Arizona, the district judges were prejudiced, the
district court erred in failing to seal documents or allow the use of a different name,
and that the court reporter erred in certain transcriptions.
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).
We treat Ziya’s motion, filed on July 21, 2014, as a motion to supplement
the record and deny the motion.
All other pending requests are denied.
AFFIRMED.
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