Porto v. City of Newport Beach, 021913 FED9, 11-56215

Docket Nº:11-56215
Party Name:LEONARD J. PORTO, III, an individual, Plaintiff - Appellant, v. CITY OF NEWPORT BEACH, a municipality; et al., Defendants-Appellees
Judge Panel:Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Case Date:February 19, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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LEONARD J. PORTO, III, an individual, Plaintiff - Appellant,

v.

CITY OF NEWPORT BEACH, a municipality; et al., Defendants-Appellees

No. 11-56215

United States Court of Appeals, Ninth Circuit

February 19, 2013

NOT FOR PUBLICATION

Submitted February 11, 2013 [**]

Appeal from the United States District Court No. 8:11-cv-00180-DOC-MLG for the Central District of California David O. Carter, District Judge.

Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.

MEMORANDUM [*]

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 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)).

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...

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