                                                                           FILED
                            NOT FOR PUBLICATION                            MAR 03 2014

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



                             FOR THE NINTH CIRCUIT


TAMI E. HENRY,                                   No. 13-15139

               Plaintiff - Appellant,            D.C. No. 2:11-cv-01773-FJM

  v.
                                                 MEMORANDUM*
UNIVERSAL TECHNICAL INSTITUTE;
et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                   Frederick J. Martone, District Judge, Presiding

                            Submitted February 18, 2014**

Before:        ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.

       Tami E. Henry appeals pro se from the district court’s judgment in his action

alleging, among other things, violations of Title VI of the Civil Rights Act of 1964

arising from his experiences as a student at Universal Technical Institute (“UTI”).


          *
             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).
We have jurisdiction under 28 U.S.C. § 1291. We review de novo both summary

judgment and the dismissal of claims. Doe v. Abbott Labs., 571 F.3d 930, 933 (9th

Cir. 2009). We may affirm on any ground supported by the record, Thompson v.

Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008), and we affirm.

      The district court properly granted summary judgment on Henry’s Title VI

claim alleging that UTI did not allow Henry to makeup or retake a test because

Henry failed to raise a genuine dispute of material fact as to whether UTI’s refusal

constituted racial or national origin discrimination. See Fobbs v. Holy Cross

Health Sys. Corp., 29 F.3d 1439, 1447 (9th Cir. 1994) (Title VI requirements),

overruled on other grounds by Daviton v. Columbia/HCA Healthcare Corp., 241

F.3d 1131 (9th Cir. 2001) (en banc); see also Cafasso, U.S. ex rel. v. Gen.

Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir. 2011) (“To survive

summary judgment, a plaintiff must set forth non-speculative evidence of specific

facts, not sweeping conclusory allegations.”).

      The district court properly dismissed Henry’s remaining Title VI claims

because Henry failed to allege facts showing that he suffered any injury by the

alleged playing of the confederate anthem, or that defendants’ other alleged

conduct constituted racial or national origin discrimination. See Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (requirements to establish


                                          2                                     13-15139
standing); Fobbs, 29 F.3d at 1447 (Title VI requirements).

       The district court properly dismissed Henry’s Fourteenth Amendment claims

because Henry failed to allege facts showing that defendants acted under color of

state law. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982) (“Because

the [Fourteenth] Amendment is directed at the States, it can be violated only by

conduct that may be fairly characterized as ‘state action.’”).

       The district court properly dismissed Henry’s claims under the Family

Educational Rights and Privacy Act (“FERPA”) and 18 U.S.C. § 371 because these

statutes do not provide for a private right of action. See Gonzaga Univ. v. Doe, 536

U.S. 273, 287 (2002) (no private right of action to enforce FERPA); Aldabe v.

Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (per curiam) (affirming dismissal of

claims brought under criminal provisions that “provide[d] no basis for civil

liability”).

       The district court properly dismissed Henry’s 42 U.S.C. § 1985(3) claim

because Henry failed to allege facts showing that a discriminatory animus

motivated the alleged conspiracy to deprive him of his rights. See Sever v. Alaska

Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992) (elements of § 1985(3) claim,

including racial or other class-based animus).

       The district court properly dismissed Henry’s Age Discrimination Act claim


                                           3                                   13-15139
because Henry failed to allege facts showing that he complied with the

prerequisites to file a claim under the Act. See 42 U.S.C. § 6104(e) (prerequisites

to bringing a claim under the Age Discrimination Act).

      The district court properly dismissed Henry’s claim alleging retaliation

under the Americans with Disabilities Act because Henry failed to allege facts

showing that he was disabled within the meaning of the Act. See 42 U.S.C.

§§ 12102 (definition of “disability”), 12203 (prohibiting retaliation under the

Americans with Disabilities Act).

      Dismissal of Henry’s Safe Schools Act claim was proper because Henry

failed to allege facts showing that UTI is a “local educational agenc[y].” 20 U.S.C.

§§ 5962(a)(1), 7801(26)(A).

      The district court properly dismissed Henry’s state law claims because

Henry failed to allege facts showing the required elements. See Ford v. Revlon,

Inc., 734 P.2d 580, 585 (Ariz. 1987) (elements of intentional infliction of

emotional distress under Arizona law); Echols v. Beauty Built Homes, Inc., 647

P.2d 629, 631 (Ariz. 1982) (elements of fraud under Arizona law); Johnson v.

Davis, 178 S.W.3d 230, 240 (Tex. App. 2005) (civil assault under Texas law).

      The district court did not abuse its discretion by denying Henry’s motions to

recuse the district court judge, compel discovery, proceed in forma pauperis, or for


                                          4                                       13-15139
default judgment, or by granting defendants’ motion for discovery sanctions. See

Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008) (standard of review for

recusal motion); Childress v. Darby Lumber, Inc., 357 F.3d 1000, 1009-10 (9th

Cir. 2004) (standard of review for discovery issues, including discovery sanctions);

O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990) (standard of review for in

forma pauperis request); Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986)

(setting forth standard of review and factors for determining whether to enter

default judgment).

      Henry’s contention that the district court erred by denying his motion to

require the U.S. Attorney General to intervene under Fed. R. Civ. P. 24 is

unpersuasive.

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

      Defendants’ requests to strike Henry’s exhibits that are not part of the

district court record, filed on August 29, 2013, September 30, 2013, and January

27, 2014, are granted. Henry’s motion for a temporary injunction, filed on January

17, 2014, is denied as moot. All other pending motions and requests are denied.

      AFFIRMED.


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