Michael Foley v. Christopher Hermes ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 12 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL FOLEY, No. 19-15592
Plaintiff-Appellant, D.C. No. 2:16-cv-02369-APG-PAL
v.
MEMORANDUM*
CHRISTOPHER HERMES, an individual;
et al.,
Defendants-Appellees,
and
DESERT OASIS HIGH SCHOOL; et al.,
Defendants.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Submitted May 6, 2020**
Before: BERZON, N.R. SMITH, and MILLER, Circuit Judges.
Michael Foley appeals pro se from the district court’s judgment dismissing
*
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).
his 42 U.S.C. § 1983 action alleging violations of his parenting rights. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Federal
Rule of Civil Procedure 12(b)(6). Cervantes v. Countrywide Home Loans, Inc.,
656 F.3d 1034, 1040 (9th Cir. 2011). We may affirm on any basis supported by
the record. Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We
affirm.
Dismissal of Foley’s action was proper because Foley failed to allege facts
sufficient to state a plausible claim that Foley was deprived of a constitutional
right. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se
pleadings are liberally construed, a plaintiff must allege facts sufficient to state a
plausible claim); see also West v. Atkins, 487 U.S. 42, 48 (1988) (elements of a
§ 1983 claim); City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (a claim
under Monell v. Department of Social Services, 436 U.S. 658 (1978) cannot
survive in the absence of an underlying constitutional violation); see also Simmons
v. Sacramento Cty. Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003)
(conclusory allegations of conspiracy do not support a claim under § 1983).
The district court did not abuse its discretion by dismissing Foley’s claims
against defendant Hosein because Foley failed to effectuate proper service on
Hosein and no further extension of time for service was warranted. See Fed. R.
Civ. P. 4(e); Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (discussing
2 19-15592
district court’s broad discretion and factors to consider in deciding whether to
extend time for service).
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.
3 19-15592