NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRENDA MOORE, No. 16-56312
Plaintiff-Appellant, D.C. No. 3:15-cv-01186-CAB-
MDD
v.
GREYHOUND BUS LINES, INC.; U.S. MEMORANDUM*
SECURITY ASSOCIATE,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Brenda Moore appeals pro se from the district court’s judgment dismissing
her action alleging a violation of the Americans with Disabilities Act (“ADA”).
We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal
under Fed. R. Civ. P. 12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010).
*
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).
We affirm in part, reverse in part, and remand.
The district court properly dismissed without leave to amend the ADA claim
against defendant U.S. Security Associate (“U.S. Security”) because Moore failed
to allege facts sufficient to show that U.S. Security denied Moore public
accommodations because of her disability. See id. at 341-42 (although pro se
pleadings are to be liberally construed, a plaintiff must present factual allegations
sufficient to state a plausible claim for relief); Molski v. M.J. Cable, Inc., 481 F.3d
724, 730 (9th Cir. 2007) (elements of a Title III discrimination claim); Chappel v.
Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000) (explaining that dismissal
without leave to amend is proper when amendment would be futile or cause undue
prejudice).
In her First Amended Complaint, Moore alleged that she walks with a cane
and wears a support device due to nerve damage in her foot and leg; that when she
bought her bus ticket, she notified defendants that she was disabled and needed
assistance boarding buses; that a bus driver and supervisor refused to assist Moore
in boarding the bus; that she was not allowed to board the bus because of her
disability of being unable to climb stairs without assistance; and that transportation
services provided by private entities such as defendant Greyhound Bus Lines, Inc.
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(“Greyhound”) are covered by the ADA. In total, Moore’s allegations are
sufficient to plead the elements of an ADA claim against Greyhound. See Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007) (to survive a Rule 12(b)(6) dismissal,
a plaintiff must successfully “nudge[] [her] claim[] across the line from
conceivable to plausible”); see also Weaving v. City of Hillsboro, 763 F.3d 1106,
1111 (9th Cir. 2014) (discussing definition of disability, and noting that “[t]he
definition of disability . . . shall be construed in favor of broad coverage of
individuals” (citation and internal quotation marks omitted)).
Although Moore alleged facts sufficient to state a plausible ADA claim
against Greyhound, Moore failed to include a demand for relief in her complaint.
See Fed. R. Civ. P. 8(a)(3) (“A pleading that states a claim for relief must contain
. . . a demand for the relief sought . . . .”). Moore’s opposition to defendants’
motions to dismiss, however, contains a prayer for relief, which evidences her
ability to amend her complaint. Because Moore was never instructed regarding
this Rule 8 deficiency and never given an opportunity to correct it, we reverse and
remand to the district court to provide Moore with notice of the deficiency and
allow her an opportunity to file a second amended complaint, with a prayer for
relief, as to only the ADA claim against Greyhound. See Lucas v. Dep’t of Corr.,
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66 F.3d 245, 248 (9th Cir. 1995) (“Unless it is absolutely clear that no amendment
can cure the defect . . . a pro se litigant is entitled to notice of the complaint’s
deficiencies and an opportunity to amend prior to dismissal of the action.”).
We deem abandoned Moore’s other federal and state law claims because
Moore fails to raise any specific arguments regarding these claims in her opening
brief. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir.
2003) (“[W]e will not consider any claims that were not actually argued in
appellant’s opening brief.”); Acosta–Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir.
1993) (issues not supported by argument in pro se appellant’s opening brief are
waived).
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
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