Thomas Easton v. Robert Wilkie ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 12 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS DEWEY EASTON, No. 19-35699
Plaintiff-Appellant, D.C. No. 6:18-cv-00233-AA
v.
MEMORANDUM**
KRISTOPHER G. KYES, individually and
in his official capacity as DMV/Medical
Programs Coordinator; OREGON
DEPARTMENT OF TRANSPORTATION,
DMV,
Defendants-Appellees.
and
ROBERT WILKIE*, in his official capacity
as the Secretary of the U.S. Department of
Veterans Affairs; CAROLINE M.
HOWELL, FNP, individually and in her
official capacity as employee of Veterans
Affairs Clinic Eugene, Oregon,
Defendants.
Appeal from the United States District Court
for the District of Oregon
*
Robert Wilkie has been substituted for his predecessor, David J.
Shulkin, as Secretary of Veterans Affairs under Fed. R. App. P. 43(c)(2).
**
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Ann L. Aiken, District Judge, Presiding
Submitted August 5, 2020***
Before: SCHROEDER, HAWKINS, and LEE, Circuit Judges.
Thomas Dewey Easton appeals pro se from the district court’s judgment
dismissing his action brought under 42 U.S.C. § 1983 and the Americans with
Disabilities Act (“ADA”) alleging claims arising from the suspension of his
driver’s license. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo a dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6) and
questions of sovereign immunity. Allen v. Gold Country Casino, 464 F.3d 1044,
1046 (9th Cir. 2006). We affirm.
The district court properly dismissed Easton’s claims in his first amended
complaint against defendant Oregon Department of Transportation, DMV and
defendant Kyes in his official capacity on the basis of sovereign immunity. See
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66, 71 (1989) (holding that
Congress did not abrogate state sovereign immunity in enacting § 1983; “[A] suit
against a state official in his or her official capacity is not a suit against the official
but rather is a suit against the official’s office . . . . As such, it is no different from a
suit against the State itself.”); Pennhurst State Sch. & Hosp. v. Halderman, 465
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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U.S. 89, 99 (1984) (states must unequivocally express consent to waive sovereign
immunity). Because the district court properly dismissed these claims, the district
court properly denied Easton’s motion for partial summary judgment.
The district court properly dismissed Easton’s claims in his first amended
complaint against defendant Kyes in his individual capacity because Easton 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 construed liberally,
plaintiff must present factual allegations sufficient to state a plausible claim for
relief); see also Mackey v. Montrym, 443 U.S. 1, 17-19 (1979) (summary
suspension of driver’s license with provision for post-deprivation administrative
hearing satisfied due process); Marsh v. County of San Diego, 680 F.3d 1148, 1152
(9th Cir. 2012) (elements of a § 1983 claim); Philbert v. Kluser, 385 P.3d 1038,
1041-1042 (Or. 2016) (requirements of a negligent infliction of emotion distress
claim under Oregon law); Babick v. Or. Arena Corp., 40 P.3d 1059, 1063 (Or.
2002) (requirements of an intentional infliction of emotional distress claim under
Oregon law).
The district court properly dismissed Easton’s ADA claims in his second
amended complaint because Easton failed to allege facts sufficient to show that
defendants discriminated or retaliated against him because of his disability. See
T.B. ex rel. Brenneise v. San Diego Unified Sch. Dist., 806 F.3d 451, 473 (9th Cir.
3
2015) (but-for causation standard applies to retaliation claims under the ADA);
Weinreich v. L.A. Cty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997)
(under Title II of ADA, a plaintiff must allege discrimination by reason of his or
her disability).
We reject as without merit Easton’s contention that he did not have a chance
to confront witnesses at his state hearing.
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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