Opinion
21-55240
11-15-2022
KATHERINE AVILLA OWEN, Plaintiff-Appellant, v. CITY OF HEMET; H. P. KANG, City Planning Supervisor, in official capacity, Defendants-Appellees, and LIONEL MARTINEZ, Code Enforcement Manager, in official capacity, Defendant.
NOT FOR PUBLICATION
Submitted November 10, 2022 [**] San Francisco, California
Appeal from the United States District Court for the Central District of California John W. Holcomb, District Judge, Presiding D.C. No. 5:19-cv-01388-JWH-E
Before: WALLACE, O'SCANNLAIN, and FERNANDEZ, Circuit Judges.
MEMORANDUM [*]
Katherine Avilla Owen appeals from the district court's order granting defendants' motion to dismiss her Second Amended Complaint for failure to state a claim and denying Owen leave to amend. As the facts are known to the parties, we repeat them only as necessary to explain our decision.
Owen's claim alleging that the defendants violated the Federal Housing Act ("FHA") fails because she does not allege facts showing that the defendants were involved in the design or construction of the Peppertree community, where she lives.
Owen's FHA allegations based on the defendants' unwillingness to enforce the housing code fare no better. The only facts she presents are that the defendants were aware of her status as a handicapped person. Owen, however, does not allege facts demonstrating discriminatory motive or intent, as required for a showing of disparate treatment. Sw. Fair Hous. Council, Inc. v. Maricopa Domestic Water Improvement Dist., 17 F.4th 950, 972 (9th Cir. 2021) (en banc). Nor does she allege facts demonstrating "robust causality" between the defendants' inaction and her status as a handicapped person, as required for a showing of disparate impact. Id. at 961. Although we construe pro se pleadings liberally, especially in civil rights cases, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), we "may not supply essential elements of the claim that were not . . . pled," Litmon v. Harris, 768 F.3d 1237, 1241 (9th Cir. 2014).
As with Owen's FHA claim, her allegations of an equal protection violation fail because she did not present allege facts establishing defendants' "intent or purpose to discriminate." Shooter v. Arizona, 4 F.4th 955, 960 (9th Cir. 2021). Merely stating that defendants were aware of her race and gender is not enough to impute such an intent or purpose. Id.
The due process claim falls short because, generally, a state's failure to prevent acts of a private party is not sufficient to establish liability. See Patel v. Kent Sch. Dist., 648 F.3d 965, 971 (9th Cir. 2011). The exceptions to this rule do not apply here because Owen is not in custody, id. at 972, and because the defendants did not affirmatively "create[] or expose[]" Owen to her living conditions, Martinez v. City of Clovis, 943 F.3d 1260, 1271 (9th Cir. 2019).
Contrary to Owen's assertions, the district court did not need to convert defendants' motion to dismiss into a motion for summary judgement because it did not consider extrinsic facts in reaching its holding. See Fed.R.Civ.P. 12(d); Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1207 (9th Cir. 2007).
Next, the district court did not abuse its discretion in denying Owen leave to amend because such "amendment would be futile." See Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004) (quoting Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991)). The district court had previously allowed Owen to amend her complaint twice. However, she failed to remedy the deficiencies that the district court identified when granting the defendants' motion to dismiss. Neither below nor on appeal does Owen present facts that would fill the factual holes in her allegations.
Finally, Owen cites no authority supporting her claim that district courts are not allowed to conduct independent legal research when ruling on motions. Neither is such an allegation supportable because the practice is to the contrary-judges often engage in independent legal research when deciding cases. See, e.g., United States v. Guerrero, 693 F.3d 990, 1001 (9th Cir. 2012); F.D.I.C. v. McSweeney, 976 F.2d 532, 536 n.3 (9th Cir. 1992).
AFFIRMED.
[*] 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).