Ayodele Akinola v. David Severns

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 15 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

AYODELE AKINOLA, No. 14-15302

Plaintiff-Appellant, D.C. No. 3:11-cv-00681-LRH-
WGC
v.

DAVID SEVERNS, MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding

Submitted August 9, 2017**

Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.

Ayodele Akinola appeals pro se from the district court’s order dismissing

certain claims in his 42 U.S.C. § 1983 action alleging race discrimination in his

employment with the State of Nevada’s Department of Transportation. We have

*
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).
jurisdiction under 28 U.S.C. § 1291.1 We review de novo a dismissal for failure to

state a claim under Federal Rule of Civil Procedure 12(b)(6). Lacey v. Maricopa

County, 693 F.3d 896, 911 (9th Cir. 2012) (en banc). We affirm.

The district court properly dismissed Akinola’s Fourteenth Amendment

equal protection claim based on a hostile work environment theory because

Akinola failed to allege facts sufficient to show conduct severe or pervasive

enough to alter the terms or conditions of his employment. See Manatt v. Bank of

Am., NA, 339 F.3d 792, 798-99 (9th Cir. 2003) (setting forth elements of a hostile

work environment claim).

After considering Akinola’s response to the Order to Show Cause Re: Case

Dismissal (Docket Entry No. 41), we decline to consider Akinola’s First

Amendment retaliation claim because this court already considered this claim in

Case No. 15-16066. Akinola v. Severns, --- Fed. App’x ----, 2017 WL 1089547, at

*1 (9th Cir. Mar. 23, 2017).

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).

1
After considering the parties’ responses to the Order to Show Cause Re:
Jurisdiction (Docket Entry No. 30), we are satisfied that we have jurisdiction.

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 Akinola’s motion for leave to file a late letter brief (Docket Entry No. 38) is

granted. The Clerk shall file the letter brief submitted by Akinola on March 1,

2017 (Docket Entry No. 36).

AFFIRMED.

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