Saul Mendoza v. Lehigh Southwest Cement Compan

FILED
NOT FOR PUBLICATION OCT 04 2013

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

SAUL MENDOZA, No. 12-16254

Plaintiff - Appellant, D.C. No. 5:11-cv-01286-LHK

v.
MEMORANDUM *
LEHIGH SOUTHWEST CEMENT
COMPANY, AKA Lehigh Hanson
Heidelberg Cement Group,

Defendant - Appellee.

Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding

Submitted September 24, 2013 **

Before: RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.

Saul Mendoza appeals pro se from the district court’s judgment in his

employment action alleging, among other things, harassment based on his

disability, race and national origin. We have jurisdiction under 28 U.S.C. § 1291.

*
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).
We review de novo the district court’s dismissal for failure to state a claim under

Federal Rule of Civil Procedure 12(b)(6), Wood v. City of San Diego, 678 F.3d

1075, 1080 (9th Cir. 2012), and for an abuse of discretion its decision whether to

apply equitable estoppel or tolling, Leong v. Potter, 347 F.3d 1117, 1121 (9th Cir.

2003). We affirm.

The district court properly dismissed Mendoza’s federal claims because

Mendoza failed to file a timely complaint with the Equal Employment Opportunity

Commission (“EEOC”), and he failed to demonstrate a basis for equitable estoppel

or tolling. See 42 U.S.C. § 2000e-5(e) (setting forth the time for filing a complaint

with EEOC under Title VII); Leong, 347 F.3d at 1123 (discussing the requirements

for equitable estoppel and tolling); see also 42 U.S.C. § 12117(a) (adopting 42

U.S.C. § 2000e-5 procedures for claims under the Americans with Disabilities

Act). Moreover, the district court did not abuse its discretion by denying

Mendoza’s request for leave to amend these claims. See Abagninin v. AMVAC

Chem. Corp., 545 F.3d 733, 742 (9th Cir. 2008) (setting forth standard of review

and explaining that leave to amend may be denied if amendment would be futile or

if previous amendment failed to cure deficiencies).

The district court did not abuse its discretion by dismissing Mendoza’s new

claims for “Punishment, Mislead, Accomplishment, and Negligence” because

2 12-16254
Mendoza failed to seek leave to add these claims. See Fed. R. Civ. P. 15(a)(2)

(other than amending “as a matter of course,” a plaintiff may amend his complaint

“only with the opposing party’s written consent or the court’s leave”). Moreover,

Mendoza failed to state cognizable claims. See Johnson v. Riverside Healthcare

Sys., LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (explaining that “a Rule 12(b)(6)

dismissal may be based on either a ‘lack of a cognizable legal theory’ or ‘the

absence of sufficient facts alleged under a cognizable legal theory’” (citation

omitted)); Ladd v. County of San Mateo, 911 P.2d 496, 498 (Cal. 1996) (elements

of a negligence claim under California law).

Mendoza’s contention that the district court did not consider his work-

related injuries or pro se status is unpersuasive.

AFFIRMED.

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