                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 10 2014

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



                            FOR THE NINTH CIRCUIT


HOWARD ALAN ZOCHLINSKI,                          No. 12-15120

              Plaintiff - Appellant,             D.C. No. 2:10-cv-01824-KJM-JFM

  v.
                                                 MEMORANDUM*
REGENTS OF THE UNIVERSITY OF
CALIFORNIA; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Kimberly J. Mueller, District Judge, Presiding

                          Submitted December 17, 2013**


Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.

       Howard Alan Zochlinski appeals pro se from the district court’s judgment

dismissing his 42 U.S.C. § 1983 action alleging federal and state law claims arising


        *
             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, and, therefore, denies plaintiff’s request for oral argument.
See Fed. R. App. P. 34(a)(2).
from a conspiracy to slander him after he was disqualified from a graduate school

program. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a

dismissal for failure to state a claim, and for an abuse of discretion the denial of

leave to amend. Wood v. City of San Diego, 678 F.3d 1075, 1080 (9th Cir. 2012).

We affirm in part, reverse in part, and remand.

      The district court properly dismissed Zochlinski’s §§ 1981, 1983, 1985 and

1986 claims against The Regents of the University of California, and his damages

claims under these provisions against the individual defendants in their official

capacities, because arms of the state and their agents acting in their official

capacities are not subject to suit under those provisions. See Pittman v. Oregon

Employment Dep’t, 509 F.3d 1065, 1071 (9th Cir. 2007); Trerice v. Pedersen, 769

F.2d 1398, 1403 (9th Cir. 1985) (no § 1986 cause of action absent a valid § 1985

claim).

      The district court properly dismissed Zochlinski’s §§ 1982 and 1983

conspiracy claims as well as his claims under Title II, IV, VI, and VII of the Civil

Rights Act against all defendants because Zochlinski failed to allege facts to

support one or more element of each claim. See Franklin v. Fox, 312 F.3d 423,

441 (9th Cir. 2001) (elements of § 1983 conspiracy claim); see also 42 U.S.C. §

1982 (claim arises if defendant interferes with plaintiff’s right to “inherit, purchase,


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lease, sell, hold [or] convey” property); 42 U.S.C. § 2000a (addressing

discrimination in public accommodation); id. § 2000c (addressing desegregation in

public schools); id. § 2000d (addressing exclusion from educational programs that

receive federal assistance on the basis of race, color, or national origin); id.

§ 2000e (addressing employment discrimination).

      However, the district court erred in dismissing Zochlinski’s § 1981 equal

protection claim against defendant John Jones, and his § 1983 defamation plus

claim against defendants John Oakley and Jones, to the extent that Zochlinski

seeks damages from them in their individual capacities, because Zochlinski alleged

that defendant Jones acted with racial animus against people of Jewish descent, and

that both defendants defamed him in retaliation for his exercise of First

Amendment rights and with disregard for his right to pursue his chosen profession.

See Pittman, 509 F.3d at 1071 (§§ 1981 and 1983 damages claims cognizable

against public officials in their individual capacities); Herb Hallman Chevrolet,

Inc. v. Nash-Holmes, 169 F.3d 636, 645 (9th Cir. 1999) (elements of § 1983

defamation-plus claim); see also Saint Francis Coll v. Al-Khazraji, 481 U.S. 604,

611-13 (1987) (§ 1981 racial discrimination claim encompasses animus against

people of Jewish descent, among others); Greene v. McElroy, 360 U.S. 474, 492




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(1959) (noting an individual’s Fifth Amendment right to follow a chosen

profession free from unreasonable governmental interference).

      The district court also erred by dismissing as time-barred Zochlinski’s state

law claims for defamation, infliction of emotional distress, and violations of the

Unruh Civil Rights Act because Zochlinski alleges that he filed suit within one

year after he had reason to be aware of the alleged slander. Defendants offer no

persuasive conflicting evidence, only conjecture. See Cal. Civ. Proc. Code

§ 340(c); Jolly v. Eli Lilly & Co., 751 P.2d 923, 927 (Cal. 1988) (discussing

delayed discovery rule and accrual of claims under California law); Wood, 678

F.3d at 1080 (court accepts as true all well pleaded facts); see also Neitzke v.

Williams, 490 U.S. 319, 327 (1989) (“Rule 12(b)(6) does not countenance []

dismissals based on a judge’s disbelief of a complaint’s factual allegations”).

      The district court abused its discretion by denying Zochlinski leave to amend

and provide factual specificity regarding his timely state law claims, and his

§§ 1981 and 1983 claims for damages against the individual defendants. See

Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003)

(listing factors to weigh regarding leave to amend).

      Zochlinski’s contentions regarding the magistrate judge’s and the district

judge’s alleged bias are unpersuasive.


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      Zochlinski’s requests for appointment of counsel and for an investigation by

state or federal prosecutors, set forth in his briefs, are denied.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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