Bobby Tucker v. Claremont at Walden LLC;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BOBBY TUCKER,
Plaintiff-Appellant,
v.
CLAREMONT AT WALDEN LLC; et al.,
Defendants-Appellees.
No. 16-35617
D.C. No. 2:15-cv-00570-MJP
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Bobby Tucker appeals pro se from the district court’s judgment dismissing
his 42 U.S.C. § 1983 action alleging federal and state law claims related to the
denial of housing. We have jurisdiction under 28 U.S.C. § 1291. We affirm in
part, vacate in part, and remand.
* 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).
FILED
OCT 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 16-35617
In Tucker’s opening brief, Tucker failed to address any of the grounds for
dismissal, and has therefore waived his challenge to the district court’s order. See
Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“[W]e
review only issues which are argued specifically and distinctly in a party’s opening
brief.” (citation and internal quotation marks omitted)); Acosta–Huerta v. Estelle, 7
F.3d 139, 144 (9th Cir. 1993) (issues not supported by argument in pro se
appellant’s opening brief are waived). However, because the district court lacked
an independent basis for subject matter jurisdiction over the state law claims
against defendants Chan and the Seattle Office of Civil Rights, dismissal as to
these defendants should have been without prejudice. See Kelly v. Fleetwood
Enters., Inc., 377 F.3d 1034, 1036 (9th Cir. 2004) (“[B]ecause the district court
lacked subject matter jurisdiction, the claims should have been dismissed without
prejudice.”). We vacate the judgment in part and remand for the district court to
dismiss the state law claims against these defendants without prejudice.
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.

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