RODRICK GORDON DeROCK v. Sprint-Nextel

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RODRICK GORDON DeROCK,
Plaintiff - Appellant,
v.
SPRINT-NEXTEL et al.,
Defendants - Appellees.
No. 12-35849
D.C. Nos.
1:11-cv-00619-BLW-LMB
1:12-cv-00024-BLW-LMB
1:12-cv-00168-BLW-LMB
1:12-cv-00169-BLW-LMB
1:12-cv-00176-BLW-LMB
1:12-cv-00177-BLW-LMB
1:12-cv-00301-BLW-LMB
1:12-cv-00305-BLW-LMB
1:12-cv-00316-BLW-LMB
1:12-cv-00339-BLW-LMB
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief Judge, Presiding
Submitted August 26, 2014 **
Before: LEAVY, GRABER, and OWENS, Circuit Judges.
FILED
MAR 12 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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. Fed. R. App. P. 34(a)(2).

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In these consolidated ten cases, Rodrick Gordon DeRock appeals pro se
from the district court’s judgment dismissing his actions arising out of an ongoing
rental dispute. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order) (dismissal under
28 U.S.C. § 1915(e)(2)); Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1369
(9th Cir. 1987) (determination that a complaint lacks arguable substance in law or
fact). We affirm nine cases, and in case number 1:12-cv-00024, we affirm in part,
reverse in part, and remand.
The district court properly dismissed nine of DeRock’s actions either as
frivolous or for failure to state a claim because DeRock alleged unsupported legal
conclusions and fanciful factual allegations in his complaints. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (to avoid dismissal, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face” (internal quotation marks omitted)); Neitzke v. Williams, 490 U.S.
319, 325 (1989) (under § 1915(e)(2), a “frivolous” claim lacks an arguable basis
either in law or in fact; “[the] term ‘frivolous’ . . . embraces not only the inarguable
legal conclusion, but also the fanciful factual allegation”).
The district court did not abuse its discretion in denying leave to amend in
all of the actions other than DeRock v. Boise City, 1:12-cv-00024-BLW-LMB,
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because amendment would have been futile. See Lopez v. Smith, 203 F.3d 1122,
1130 (9th Cir. 2000) (en banc) (setting forth standard of review and explaining that
leave to amend should be granted unless the pleading could not possibly be cured).
In DeRock v. Boise City, 1:12-cv-00024-BLW-LMB, the district court did
not abuse its discretion in denying leave to amend DeRock’s conspiracy claims
against defendant Boise City/Ada County Housing Authority. See id. However,
leave to amend DeRock’s disability discrimination claims against defendant Boise
City/Ada County Housing Authority should have been granted because amendment
was not necessarily futile. See O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056,
1060 (9th Cir. 2007) (setting forth elements of a claim for failure to accommodate
under Title II of the Americans with Disabilities Act and Section 504 of the
Rehabilitation Act); McGary v. City of Portland, 386 F.3d 1259, 1262 (9th Cir.
2004) (setting forth elements of a claim for failure to accommodate under the Fair
Housing Amendments Act of 1988). As a pro se litigant, DeRock should have
received notice of any defects in his disability discrimination claims and an
opportunity to amend. See Lopez, 203 F.3d at 1130–31. It appears that DeRock
may be attempting to allege that he suffered from a qualifying disability and that
the Boise City/Ada County Housing Authority failed to reasonably accommodate
that disability when it refused to waive the rent on his therapeutic bedroom. See
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McGary, 386 F.3d at 1262, 1265. Accordingly, we reverse and remand as to
DeRock’s disability discrimination action against defendant Boise City/Ada
County Housing Authority so that DeRock may receive notice of any defects and
an opportunity to amend with the benefit of that notice. On remand, the district
court should also consider the merits of DeRock’s motion for appointment of
counsel, which it previously denied as moot. See Miles v. Dep’t of Army, 881
F.2d 777, 784 (9th Cir. 1989) (district court must rule on a motion to appoint
counsel before granting a party’s motion to dismiss).
Moreover, the pre-filing restriction that the district court entered against
DeRock was not narrowly tailored to DeRock’s vexatious filing of lawsuits
regarding his rental dispute and his re-litigation of previously dismissed claims.
See De Long v. Hennessey, 912 F.2d 1144, 1146–48 (9th Cir. 1990) (setting forth
standard of review and discussing the four factors for imposing pre-filing
restrictions). On remand, the district court may enter another pre-filing order
consistent with this disposition.
We reject DeRock’s contentions concerning the denial of his motion for
phone records and the district court judge’s alleged involvement in a cover-up or
conspiracy against him.
We treat DeRock’s letter filed on June 5, 2013, as a request for injunctive
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relief and deny it.
In case number 1:12-cv-00024, we AFFIRM in part, REVERSE in part,
and REMAND. The remaining cases are AFFIRMED. The parties shall bear
their own costs on appeal.
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