FILED
NOT FOR PUBLICATION NOV 04 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD J. VOLIS, No. 14-55955
Plaintiff-Appellant, D.C. No. 2:13-cv-01397-MMM-
SP
v.
HOUSING AUTHORITY OF THE CITY MEMORANDUM*
OF LOS ANGELES EMPLOYEES; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Submitted October 25, 2016**
Before: LEAVY, SILVERMAN, and GRABER, Circuit Judges.
Richard J. Volis appeals pro se from the district court’s judgment dismissing
his action alleging federal claims under the Americans with Disabilities Act of
1990 (“ADA”) and the Rehabilitation Act of 1973 (“RA”), and state law tort
*
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).
claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Barker v.
Riverside Cty. Office of Educ., 584 F.3d 821, 824 (9th Cir. 2009). We affirm.
The district court properly dismissed Volis’ claims under the ADA and RA
because Volis failed to allege facts sufficient to state any plausible claims. See
Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings
are liberally construed, a plaintiff must still present factual allegations sufficient to
state a plausible claim for relief); Pardi v. Kaiser Found. Hosps., 389 F.3d 840,
849 (9th Cir. 2004) (setting forth elements of a retaliation claim under the ADA);
Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002) (setting forth elements of
a discrimination claim under the ADA and § 504 of the RA).
The district court properly dismissed Volis’ state law tort claims because
Volis failed to file a timely claim as required by the California Government Claims
Act. See Cal. Gov’t Code §§ 810 et seq.; City of San Jose v. Superior Court, 525
P.2d 701, 706 (Cal. 1974) (compliance with claim presentation is mandatory and
failure to do so is fatal to action). Contrary to Volis’ contentions that he is excused
from the requirements of the California Government Claims Act, Volis has not
alleged facts sufficient to support the application of the continuing violation
doctrine, equitable estoppel, or the discovery rule.
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The district court did not abuse its discretion by denying Volis further leave
to amend because amendment would have been futile. See Leadsinger, Inc. v.
BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008) (setting forth standard of
review and explaining that a district court may deny leave on the basis of repeated
failures to cure a pleading’s deficiencies).
The district court did not abuse its discretion by denying Volis’ request for
leave to file a sur-reply because it reviewed the briefing and found that there were
no new issues raised by defendants’ reply brief that necessitated more argument.
See Sec. & Exch. Comm’n v. Seaboard Corp., 677 F.2d 1301, 1314 (9th Cir. 1982)
(setting forth standard of review).
Volis’ contentions that he is a beneficiary under Section 8 and that he has a
private right of action as a Section 8 housing voucher recipient are unpersuasive.
See 24 C.F.R. §§ 982.407, 982.456.
We do not consider issues raised for the first time on appeal or in the reply
brief, including whether Volis’ belated filing of a claim in August 2014 meets the
requirements under the California Government Claims Act. See Padgett v. Wright,
587 F.3d 983, 986 n.2 (9th Cir. 2009).
AFFIRMED.
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