United States v. 2020-04-30 | 17-16138 | JAY SALAZAR V. UC REGENTS | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAY J. SALAZAR,

Plaintiff-Appellant,

v.

REGENTS OF THE UNIVERSITY OF
CALIFORNIA, et al.,

Defendants-Appellees.

No. 17-16138

D.C. No. 3:16-cv-05235-EDL

MEMORANDUM
*

Appeal from the United States District Court
for the Northern District of California
Elizabeth D. Laporte, Magistrate Judge, Presiding

Submitted March 31, 2020
**

San Francisco, California

Before: GOULD and CHRISTEN, Circuit Judges, and LASNIK,
***
District Judge.

We write primarily for the parties who are familiar with the facts. Jay
Salazar, a former student at the UCSF School of Medicine (“School of Medicine”),

*
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).

***
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
FILED

APR 30 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 17-16138
brought this action alleging violations of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101, et seq., and the Rehabilitation Act, 29 U.S.C. § 701,
et seq., as well as race discrimination and retaliation in violation of § 1981 of the
Civil Rights Act, 42 U.S.C. § 1981.
1
The district court ultimately dismissed
Salazar’s complaint without leave to amend for failure to state a claim. Salazar
appeals.
1. The district court did not abuse its discretion in denying Salazar’s
post-judgment motion to alter or amend the judgment. See United Nat’l Ins. Co. v.
Spectrum Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 2009); Fed. R. Civ. P.
59(e). Given the record in this matter, including the numerous times Salazar
expressly asserted that his disability discrimination claims were based on his
ADHD and reading disorder, and his silence in the face of the district court’s
adoption of that theory, it was not manifest error for the district court to evaluate
Salazar’s disability claim in light of his learning disabilities. See Ascon Props.,
Inc. v. Mobil Oil Co., 866 F.2d 1149, 1161 (9th Cir. 1989) (“At some point . . . a
party may not respond to an adverse ruling by claiming that another theory not
previously advanced provides a possible [ground] for relief and should be

1
Salazar’s additional claims for negligence, violation of § 1983 of the Civil Rights
Act, and violations of Equal Protection and Due Process under the Fifth and
Fourteenth Amendments were dismissed with prejudice in the court’s first order of
dismissal and are not at issue on appeal.

3 17-16138
considered.” (alteration in original) (citation omitted)). On appeal, Salazar argues
that he should be permitted to amend his complaint to clarify the link between his
depression and anxiety, and his dismissal from the School of Medicine. Having
properly declined to reopen the judgment under Rule 59(e), however, the district
court was within its discretion to deny Salazar leave to further amend his complaint
in keeping with “our policy of promoting the finality of judgments.” Lindauer v.
Rogers, 91 F.3d 1355, 1357 (9th Cir. 1996); see also Navajo Nation v. Dep’t of the
Interior, 876 F.3d 1144, 1173-74 (9th Cir. 2017).
2. Furthermore, the district court did not abuse its discretion in declining
to reopen the proceedings to allow Salazar to add new allegations regarding
defendant Papadakis in support of his § 1981 race discrimination claims. See
Lindauer, 91 F.3d at 1357; Navajo Nation, 876 F.3d at 1173. Salazar was granted
leave to amend his original complaint to clarify his race discrimination claims.
Following the district court’s entry of judgment, Salazar offered no justification for
his failure to timely assert facts known since the beginning of this dispute, and
failed to show that amendment or alteration of the judgment was appropriate under
Rule 59(e). Cf. Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011)
(describing grounds upon which a Rule 59(e) motion may be granted).
3. The district court did not err in holding that Salazar’s ADA disability
discrimination claims were time-barred. Salazar’s properly pled claims for

4 17-16138
disability discrimination based on his ADHD and reading disorder were not made
possible by the 2008 amendments to the ADA, see, e.g., Zukle v. Regents of the
Univ. of Cal., 166 F.3d 1041, 1043-51 (9th Cir. 1999), and accordingly, the district
court properly dismissed them as time-barred under the applicable three-year
statute of limitations. See, e.g., Sharkey v. O’Neal, 778 F.3d 767, 770-73 (9th Cir.
2015).
4. Reviewing de novo, see Edwards v. Marin Park, Inc., 356 F.3d 1058,
1061 (9th Cir. 2004), we conclude that the district court properly held that Salazar
failed to assert an ADA claim for disability discrimination based on his depression
and/or anxiety. Even when construed liberally and in favor of the pro se litigant,
see, e.g., Bias v. Moynihan, 508 F.3d 1212, 1222 (9th Cir. 2007), the allegations in
Salazar’s amended complaint do not provide notice of a disability claim based on
depression or anxiety, and do not raise a plausible inference that Salazar was
dismissed from the School of Medicine because of those disabilities. Cf.
Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (per curiam) (describing
elements of ADA disability discrimination claim).
5. The district court properly dismissed Salazar’s § 1981 race
discrimination and retaliation claims on the ground that he failed to plead facts
raising a plausible inference that his dismissal from the School of Medicine was
racially motivated. Although a pro se plaintiff’s pleadings are construed liberally,

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even “a liberal interpretation of a civil rights complaint may not supply essential
elements of the claim that were not initially pled.” Ivey v. Bd. of Regents of Univ.
of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). According to Salazar’s amended
complaint, the last race-based comment was made in September 2010, two full
years before he was disenrolled from the School of Medicine. The timing of the
events and the record in this case do not raise an inference that Salazar’s race
motivated his dismissal.
2

6. We also agree with the district court that Salazar failed to allege any
facts giving rise to a plausible inference that his dismissal was retaliatory. Most of
Salazar’s allegations of retaliation mirror his allegations of race discrimination and
have nothing to do with a protected activity.
3
Cf. Brown v. City of Tucson, 336
F.3d 1181, 1187 (9th Cir. 2003) (summarizing elements of Title VII retaliation
claims); see also Manatt v. Bank of Am., N.A., 339 F.3d 792, 801 (9th Cir. 2003)
(“[T]hose legal principles guiding a court in a Title VII dispute apply with equal
force in a § 1981 action.” (citation omitted)).

2
We also reject as conclusory Salazar’s bald assertions that he was not provided
reasonable accommodations for his learning disabilities because of his race.
3
The one exception is Salazar’s allegation that defendants Shim, Papadakis, and
Chen retaliated for his filing of administrative complaints by conspiring to have
him involuntarily committed in June 2011. However, this alleged adverse action
falls well outside of the longest possible limitations period for a § 1981 claim.

6 17-16138
7. Finally, reviewing de novo, see Forbess v. Franke, 749 F.3d 837, 839
(9th Cir. 2014), we conclude that the district court did not err in concluding that
equitable tolling did not apply to Salazar’s disability and race discrimination
claims.
4
“We borrow our rules for equitable tolling from the forum state,
California,” Butler v. Nat’l Cmty. Renaissance of Cal., 766 F.3d 1191, 1204 (9th
Cir. 2014), and conclude that the allegations in the amended complaint do not raise
a plausible inference of (1) timely notice to defendants of Salazar’s earlier claims,
(2) lack of prejudice to defendants in their efforts to prepare a defense against the
later claim, or (3) good faith and reasonable conduct, considering Salazar’s nearly
four-year delay in bringing the claims asserted herein. Id.
AFFIRMED.

4
Relatedly, we reject Salazar’s argument, raised for the first time on appeal, that
he “should be allowed to plead additional facts establishing (1) how he notified the
defendants of the final administrative complaint, (2) the specific content of each
administrative complaint, and (3) why he waited two years beyond his bankruptcy
to file this lawsuit.” Salazar offers no authority for the proposition that a litigant
can seek to amend the operative pleading for the first time on appeal. Cf.
Cornhusker Cas. Ins. Co. v. Kachman, 553 F.3d 1187, 1191 (9th Cir. 2009).