Andrew Clark v. Wells Fargo Bank, N.A. , 669 F. App'x 362 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREW G. CLARK, No. 14-35622
Plaintiff-Appellant, D.C. No. 6:13-cv-01546-AA
v.
MEMORANDUM*
WELLS FARGO BANK, NA; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Submitted September 13, 2016**
Before: HAWKINS, N.R. SMITH, and HURWITZ, Circuit Judges.
Andrew G. Clark appeals pro se from the district court’s judgment
dismissing his action alleging federal and state law claims. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo a dismissal for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6), Eclectic Prop. E., LLC v.
*
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).
Marcus & Millichap Co., 751 F.3d 990, 995 (9th Cir. 2014), and we affirm.
The district court properly dismissed Clark’s Racketeer Influenced and
Corrupt Organizations Act claims because Clark failed to allege facts sufficient to
show a predicate act of racketeering activity. See 18 U.S.C. § 1961(1); Lacey v.
Maricopa Cty., 693 F.3d 896, 939 (9th Cir. 2012) (plaintiff’s “vague allegations
with no factual support that the defendants engaged in any of the requisite
predicate crimes” were insufficient to survive a motion to dismiss).
The district court properly dismissed Clark’s 42 U.S.C. § 1983 claims
because Clark failed to allege facts sufficient to show the requisite state action.
See Johnson v. Knowles, 113 F.3d 1114, 1118-20 (9th Cir. 1997) (§ 1983 claims
failed where plaintiffs did not show the action of a private individual amounted to
state action).
The district court properly dismissed Clark’s allegations of OSHA violations
because OSHA does not provide a private right of action. See 29 U.S.C.
§ 653(b)(4).
The district court properly dismissed Clark’s defamation claims because the
alleged defamatory statements were either made in the context of judicial
proceedings or were published by Clark on his public websites. See Wallulis v.
2 14-35622
Dymowski, 918 P.2d 755, 761 (Or. 1996) (a defamation claim is barred by an
absolute privilege for statements made as part of judicial proceedings or that are
consented to).
The district court properly dismissed Clark’s negligence claim because
defendants did not have a duty to further investigate Clark’s conduct before
complaining to the police. See Brown v. Far W. Fed. Sav. & Loan Ass’n, 674
P.2d 1183, 1186-87 (Or. 1984) (public policy considerations preclude the
imposition of a duty on citizens to investigate further before reporting crime or
instigating an arrest).
We reject as without merit Clark’s contentions that defendants committed
fraud on the court.
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).
All pending motions are denied.
AFFIRMED.
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