Sepehry-Fard v. Bank of New York Mellon, N.A.

FILED
NOT FOR PUBLICATION DEC 18 2014

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FAREED SEPEHRY-FARD, No. 13-15307

Plaintiff - Appellant, D.C. No. 5:12-cv-00871-EJD

v.
MEMORANDUM*
AURORA BANK FSB; et al.,

Defendants - Appellees.

Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding

Submitted December 9, 2014**

Before: WALLACE, LEAVY, and BYBEE, Circuit Judges.

Fareed Sepehry-Fard appeals pro se from the district court’s judgment

dismissing his 42 U.S.C. § 1983 action alleging constitutional violations arising

out of his mortgage loans. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo the district court’s dismissal under Fed. R. Civ. P. 12(b)(6) for

*
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. See Fed. R. App. P. 34(a)(2).
failure to state a claim. Cervantes v. Countrywide Home Loans, Inc., 656 F.3d

1034, 1040 (9th Cir. 2011). We affirm.

The district court properly dismissed Sepehry-Fard’s §§ 1983 and 1985

claims because Sepehry-Fard failed to allege facts sufficient to show that

defendants acted under color of state law. See Anderson v. Warner, 451 F.3d 1063,

1067 (9th Cir. 2006) (to state a claim under § 1983, a plaintiff must allege that a

person “acting under color of state law” committed the conduct at issue); Caldeira

v. County of Kauai, 866 F.2d 1175, 1182 (9th Cir. 1989) (absence of § 1983

deprivation precludes a § 1985 conspiracy claim predicated on same allegations);

see also Apao v. Bank of N.Y., 324 F.3d 1091, 1094-95 (9th Cir. 2003) (nonjudicial

foreclosure was not state action and therefore did not implicate due process).

The court did not abuse its discretion by denying leave to amend because

amendment would have been futile. See Hartmann v. Cal. Dep’t of Corr. &

Rehab., 707 F.3d 1114, 1130 (9th Cir. 2013) (setting forth standard of review and

explaining that “[a] district court may deny leave to amend when amendment

would be futile”).

The district court did not abuse its discretion in denying Sepehry-Fard’s

motion to alter or amend judgment because Sepehry-Fard failed to establish any

basis for relief. Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d

2 13-15307
1255, 1262-63 (9th Cir. 1993) (setting forth standard of review and grounds for

relief under Federal Rule of Civil Procedure 59).

We reject as without merit Sepehry-Fard’s contentions concerning alleged

judicial bias and lack of jurisdiction.

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)

(per curiam).

Sepehry-Fard’s motion to strike the answering brief and for sanctions, filed

November 5, 2014, is denied.

AFFIRMED.

3 13-15307