Nicholas E. Dibs v. Norwalk-La Mirada Unified School District;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICHOLAS E. DIBS,
Plaintiff - Appellant,
v.
NORWALK-LA MIRADA UNIFIED
SCHOOL DISTRICT; et al.,
Defendants - Appellees.
No. 13-55311
D.C. No. 2:10-cv-04858-DSF-JEM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted April 13, 2016**
Before: FARRIS, TALLMAN, and BYBEE, Circuit Judges.
Nicholas E. Dibs appeals pro se from the district court’s judgment in his 42
U.S.C. § 1983 action alleging constitutional and state law claims arising from his
termination as a substitute teacher. We have jurisdiction under 28 U.S.C. § 1291.
FILED
APR 20 2016
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. See Fed. R. App. P. 34(a)(2).

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We review de novo. Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034,
1040 (9th Cir. 2011) (dismissal under Fed. R. Civ. P. 12(b)(6)); Corales v. Bennett,
567 F.3d 554, 562 (9th Cir. 2009) (summary judgment). We may affirm on any
basis supported by the record, Corales, 567 F.3d at 562, and we affirm.
The district court properly dismissed Dibs’s substantive due process claim
because Dibs failed to allege facts sufficient to show that he was deprived of any
property interest. See Cal. Educ. Code § 44953 (“Governing boards of school
districts may dismiss substitute employees at any time at the pleasure of the
board.”); Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998)
(explaining that “[t]o establish a substantive due process claim, a plaintiff must . . .
show a government deprivation of life, liberty, or property[,]” and that “[i]n
California, the terms and conditions of public employment are generally fixed by
statute . . . not by contract (even if one is involved)” (citation and internal
quotation marks omitted)).
The district court did not abuse its discretion by dismissing Dibs’s due
process claim without leave to amend because further amendment would have been
futile. See Cervantes, 656 F.3d at 1041 (setting forth standard of review and
explaining that dismissal without leave to amend is proper when amendment would
be futile).
13-55311 2

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Summary judgment on Dibs’s First Amendment claim was proper because
Dibs failed to raise a genuine dispute of material fact as to whether his speech to
students in his class was anything other than speech as a public employee. See
Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 961-62 (9th Cir. 2011) (setting
forth five-step inquiry for measuring the legality of the government’s curtailment
of employee speech in the workplace and explaining that failure to meet one step
ends the inquiry); id. at 957 (holding no First Amendment violation because when
“a high school . . . teacher[] goes to work and performs the duties he is paid to
perform, he speaks not as an individual, but as a public employee”).
We reject as unsupported Dibs’s contention that the district court failed to
conduct a de novo review of the magistrate judge’s recommendations.
AFFIRMED.
13-55311 3

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