NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 24 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL S. YELLEN, No. 14-16899
Plaintiff-Appellant, D.C. No. 1:13-cv-00338-DKW-
KSC
v.
RANDY GRUNE; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Submitted August 16, 2016**
Before: O’SCANNLAIN, LEAVY, and CLIFTON, Circuit Judges.
Michael S. Yellen appeals pro se from the district court’s judgment
dismissing his action alleging claims under the Fourteenth Amendment and the
Americans with Disabilities Act (“ADA”) arising out of defendants’ allegedly
unequal enforcement of ADA accessibility regulations. We have jurisdiction under
*
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).
28 U.S.C. § 1291. We review de novo. Hebbe v. Pliler, 627 F.3d 338, 341 (9th
Cir. 2010) (dismissal under Fed. R. Civ. P. 12(b)(6)); Canatella v. California, 304
F.3d 843, 852 (9th Cir. 2002) (dismissal for lack of standing). We affirm.
The district court properly dismissed Yellen’s Fourteenth Amendment
claims because Yellen failed to allege facts sufficient to show that defendants
treated him differently from other similarly situated taxi cab and tour company
owners. See N. Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008)
(setting forth elements of “class of one” equal protection claim); Kildare v. Saenz,
325 F.3d 1078, 1085 (9th Cir. 2003) (setting forth the elements of a procedural due
process claim); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” (citation omitted)).
The district court properly dismissed Yellen’s ADA claim because Yellen is
not a disabled individual and thus has no standing to bring an action under the
ADA. See Chapman v. Pier 1 Imps. (U.S.), Inc., 631 F.3d 939, 946 (9th Cir. 2011)
(setting forth elements of standing under Title III of the ADA).
We do not consider Yellen’s argument that he should have been given an
2 14-16899
opportunity to conduct discovery prior to the dismissal of his Third Amended
Complaint because it was not properly raised before the district court. See Padgett
v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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