NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 23 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SON HONG, No. 21-55019
Plaintiff-Appellant, D.C. No.
8:19-cv-00086-RGK-JC
v.
MILDRED GARCIA, et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted June 21, 2022**
San Francisco, California
Before: WALLACE, FERNANDEZ, and SILVERMAN, Circuit Judges.
Son Hong appeals pro se from the district court’s order dismissing his action
alleging various federal constitutional and statutory claims. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo the district court’s dismissal for failure
to state a claim under Rule 12(b)(6), see Mudpie, Inc. v. Travelers Cas. Ins. Co. of
*
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).
Am., 15 F.4th 885, 889 (9th Cir. 2021), and for abuse of discretion the denial of leave
to amend, see Drew v. Equifax Info. Servs., 690 F.3d 1100, 1105–06 (9th Cir. 2012).
We affirm.
The district court properly dismissed Hong’s action because Hong failed to
allege facts sufficient to state any plausible claim. See Hebbe v. Pliler, 627 F.3d
338, 341–42 (9th Cir. 2010) (although pro se pleadings are to be construed liberally,
a plaintiff must present factual allegations sufficient to state a plausible claim for
relief); see also Shooter v. Arizona, 4 F.4th 955, 960 (9th Cir. 2021) (requirements
for equal protection claim); Fobbs v. Holy Cross Health Sys. Corp., 29 F.3d 1439,
1447 (9th Cir. 1994), overruled on other grounds by Daviton v. Columbia/HCA
Healthcare Corp., 241 F.3d 1131 (9th Cir. 2001) (elements of Title VI claim);
Schwake v. Ariz. Bd. of Regents, 967 F.3d 940, 946 (9th Cir. 2020) (elements of Title
IX claim). The operative complaint does not contain sufficient plausible, non-
conclusory allegations that “raise a right to relief above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”).
Hong voluntarily dismissed his breach of contract claim. See Ho v.
ReconTrust Co., NA, 858 F.3d 568, 577 (9th Cir. 2017) (claims dismissed without
prejudice and not repleaded are not preserved for appeal).
2
The district court did not abuse its discretion in dismissing Hong’s action
without leave to amend because further amendment would have been futile. See
Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1130 (9th Cir. 2013);
Mai v. United States, 952 F.3d 1106, 1112 (9th Cir. 2020) (dismissal is affirmed
when a “district court determines that further amendment would be futile” and “it is
clear, upon de novo review, that the complaint could not be saved by any
amendment” (citation omitted)). Moreover, Hong was given a previous opportunity
to amend his complaint. See Chodos v. W. Publ’g Co., 292 F.3d 992, 1003 (9th Cir.
2002) (a district court’s discretion to deny leave to amend is “particularly broad”
when it has already granted leave to amend). Despite “spen[ding] nearly one
hundred additional pages,” Hong’s prior amendment failed to cure the deficiencies
identified by the district court. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.
2012); see also Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013) (“When a
litigant knowingly and repeatedly refuses to conform his pleadings to the
requirements of the Federal Rules, it is reasonable to conclude that the litigant simply
cannot state a claim.”).
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);
Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1992) (issues not supported by
argument in pro se appellant’s opening brief are deemed abandoned).
3
AFFIRMED.
4