FILED
NOT FOR PUBLICATION JUN 10 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOWARD ALAN ZOCHLINSKI, No. 12-15120
Plaintiff - Appellant, D.C. No. 2:10-cv-01824-KJM-JFM
v.
MEMORANDUM*
REGENTS OF THE UNIVERSITY OF
CALIFORNIA; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Submitted December 17, 2013**
Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Howard Alan Zochlinski appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging federal and state law claims arising
*
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, and, therefore, denies plaintiff’s request for oral argument.
See Fed. R. App. P. 34(a)(2).
from a conspiracy to slander him after he was disqualified from a graduate school
program. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
dismissal for failure to state a claim, and for an abuse of discretion the denial of
leave to amend. Wood v. City of San Diego, 678 F.3d 1075, 1080 (9th Cir. 2012).
We affirm in part, reverse in part, and remand.
The district court properly dismissed Zochlinski’s §§ 1981, 1983, 1985 and
1986 claims against The Regents of the University of California, and his damages
claims under these provisions against the individual defendants in their official
capacities, because arms of the state and their agents acting in their official
capacities are not subject to suit under those provisions. See Pittman v. Oregon
Employment Dep’t, 509 F.3d 1065, 1071 (9th Cir. 2007); Trerice v. Pedersen, 769
F.2d 1398, 1403 (9th Cir. 1985) (no § 1986 cause of action absent a valid § 1985
claim).
The district court properly dismissed Zochlinski’s §§ 1982 and 1983
conspiracy claims as well as his claims under Title II, IV, VI, and VII of the Civil
Rights Act against all defendants because Zochlinski failed to allege facts to
support one or more element of each claim. See Franklin v. Fox, 312 F.3d 423,
441 (9th Cir. 2001) (elements of § 1983 conspiracy claim); see also 42 U.S.C. §
1982 (claim arises if defendant interferes with plaintiff’s right to “inherit, purchase,
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lease, sell, hold [or] convey” property); 42 U.S.C. § 2000a (addressing
discrimination in public accommodation); id. § 2000c (addressing desegregation in
public schools); id. § 2000d (addressing exclusion from educational programs that
receive federal assistance on the basis of race, color, or national origin); id.
§ 2000e (addressing employment discrimination).
However, the district court erred in dismissing Zochlinski’s § 1981 equal
protection claim against defendant John Jones, and his § 1983 defamation plus
claim against defendants John Oakley and Jones, to the extent that Zochlinski
seeks damages from them in their individual capacities, because Zochlinski alleged
that defendant Jones acted with racial animus against people of Jewish descent, and
that both defendants defamed him in retaliation for his exercise of First
Amendment rights and with disregard for his right to pursue his chosen profession.
See Pittman, 509 F.3d at 1071 (§§ 1981 and 1983 damages claims cognizable
against public officials in their individual capacities); Herb Hallman Chevrolet,
Inc. v. Nash-Holmes, 169 F.3d 636, 645 (9th Cir. 1999) (elements of § 1983
defamation-plus claim); see also Saint Francis Coll v. Al-Khazraji, 481 U.S. 604,
611-13 (1987) (§ 1981 racial discrimination claim encompasses animus against
people of Jewish descent, among others); Greene v. McElroy, 360 U.S. 474, 492
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(1959) (noting an individual’s Fifth Amendment right to follow a chosen
profession free from unreasonable governmental interference).
The district court also erred by dismissing as time-barred Zochlinski’s state
law claims for defamation, infliction of emotional distress, and violations of the
Unruh Civil Rights Act because Zochlinski alleges that he filed suit within one
year after he had reason to be aware of the alleged slander. Defendants offer no
persuasive conflicting evidence, only conjecture. See Cal. Civ. Proc. Code
§ 340(c); Jolly v. Eli Lilly & Co., 751 P.2d 923, 927 (Cal. 1988) (discussing
delayed discovery rule and accrual of claims under California law); Wood, 678
F.3d at 1080 (court accepts as true all well pleaded facts); see also Neitzke v.
Williams, 490 U.S. 319, 327 (1989) (“Rule 12(b)(6) does not countenance []
dismissals based on a judge’s disbelief of a complaint’s factual allegations”).
The district court abused its discretion by denying Zochlinski leave to amend
and provide factual specificity regarding his timely state law claims, and his
§§ 1981 and 1983 claims for damages against the individual defendants. See
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003)
(listing factors to weigh regarding leave to amend).
Zochlinski’s contentions regarding the magistrate judge’s and the district
judge’s alleged bias are unpersuasive.
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Zochlinski’s requests for appointment of counsel and for an investigation by
state or federal prosecutors, set forth in his briefs, are denied.
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
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