LEONARD J. PORTO, III, an individual v. City of Newport Beach, a municipality;

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEONARD J. PORTO, III, an individual,
Plaintiff - Appellant,
v.
CITY OF NEWPORT BEACH, a
municipality; et al.,
Defendants - Appellees.
No. 11-56215
D.C. No. 8:11-cv-00180-DOC-
MLG
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted February 11, 2013**
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Leonard J. Porto, III, appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging that defendants violated his
constitutional rights, the Fair Housing Act (“FHA”), and state law. We have
FILED
FEB 19 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to
state a claim. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). We affirm.
The district court properly dismissed Porto’s discrimination claims under the
FHA and the Fourteenth Amendment because Porto failed to allege that defendants
discriminated against him based on his membership in a protected class. See 42
U.S.C. § 3602(k) (defining “familial status” for purposes of the FHA as a minor
being domiciled with an adult); id. § 3604 (setting out protected classes under the
FHA, including “familial status”); Barren v. Harrington, 152 F.3d 1193, 1194-95
(9th Cir. 1998) (order) (explaining the requirements of an equal protection claim).
The district court properly dismissed Porto’s claims challenging Newport
Beach Municipal Code §§ 6.04.70 and 11.08.040 as unconstitutional because those
provisions are not unconstitutionally vague. See Hill v. Colorado, 530 U.S. 703,
732 (2000) (explaining the requirements of a void-for-vagueness claim).
The district court properly dismissed Porto’s claim alleging that defendants
violated his right to be free from cruel and unusual punishment because Porto was
not imprisoned. See Pierce v. Multnomah County, 76 F.3d 1032, 1042 (9th Cir.
1996) (“[T]he Eighth Amendment’s prohibition against the malicious or sadistic
use of force does not apply ‘until after conviction and sentence.’” (citations
omitted)).

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The district court properly dismissed Porto’s claim alleging that defendants
unlawfully seized his residence because a prior state court action had determined
that Porto lacked any possessory interest in the property. See Soldal v. Cook
County, 506 U.S. 56, 61 (1992) (“A ‘seizure’ of property . . . occurs when ‘there is
some meaningful interference with an individual’s possessory interests in that
property.’” (citation omitted)); Parsons Steel, Inc. v. First Alabama Bank, 474 U.S.
518, 523 (1986) (federal courts must give preclusive effect to state court
judgments).
The district court did not abuse its discretion in declining to exercise
supplemental jurisdiction over Porto’s state law claims because no federal claims
remained. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)
(where all federal claims are eliminated before trial, courts generally should
decline to exercise supplemental jurisdiction over remaining state law claims);
Tritchler v. County of Lake, 358 F.3d 1150, 1153 (9th Cir. 2004) (reviewing for an
abuse of discretion).
The district court did not abuse its discretion in dismissing without leave to
amend because the deficiencies in Porto’s complaint could not be cured by
amendment. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc)

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(setting forth standard of review and explaining that leave to amend should be
given unless the deficiencies in the complaint cannot be cured by amendment).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
AFFIRMED.

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