NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WENDELL DWAYNE O’NEAL, 

Plaintiff-Appellant, 

 v. 

EMPIRE FIRE AND MARINE 

INSURANCE COMPANY; et al., 

Defendants-Appellees.

Nos. 17-17282 

18-15591 

D.C. No. 2:16-cv-02313-JCMCWH 

MEMORANDUM*

Appeals from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Submitted August 15, 2018**

Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.

In these consolidated appeals, Wendell Dwayne O’Neal appeals pro se from 

the district court’s judgment dismissing his action alleging federal and state law 

claims, and its post-judgment order imposing a pre-filing restriction on him as a 

vexatious litigant. We have jurisdiction under 28 U.S.C. § 1291. We review de 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes these cases are suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

AUG 21 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 17-17282 

novo a dismissal under Federal Rule of Civil Procedure 12(b)(6). Hebbe v. Pliler, 

627 F.3d 338, 341 (9th Cir. 2010). We may affirm on any basis supported by the 

record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 

2008). We affirm in part and vacate in part. 

Dismissal of O’Neal’s federal claims was proper because O’Neal failed to 

allege facts sufficient to state a plausible claim. See Hebbe, 627 F.3d at 341-42 

(although pro se pleadings are construed liberally, a plaintiff must present factual 

allegations sufficient to state a plausible claim for relief); see also West v. Atkins, 

487 U.S. 42, 48 (1988) (elements of a § 1983 claim); Lindsey v. SLT L.A., LLC, 

447 F.3d 1138, 1145 (9th Cir. 2006) (elements of a § 1981 claim outside of an 

employment context); Thornton v. City of St. Helens, 425 F.3d 1158, 1168-69 (9th 

Cir. 2005) (the absence of a deprivation of rights under § 1983 precludes a 

§ 1985(3) claim premised on the same allegations); Trerice v. Pedersen, 769 F.2d 

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

claim).

The district court properly dismissed O’Neal’s intentional infliction of 

emotional distress (“IIED”) claim because O’Neal failed to allege facts sufficient 

to show extreme or outrageous conduct. See Nelson v. City of Las Vegas, 665 P.2d 

1141, 1145 (Nev. 1983) (per curiam) (elements of an IIED claim under Nevada 

law).
3 17-17282 

The district court found that O’Neal filed numerous frivolous motions in this 

action that unnecessarily delayed the proceedings, and observed that O’Neal had 

been declared a vexatious litigant in state court. However, the district court did not 

make explicit substantive findings as to the frivolousness of O’Neal’s prior filings 

or narrowly tailor the scope of its pre-filing order. See Molski v. Evergreen 

Dynasty Corp., 500 F.3d 1047, 1056-61 (setting forth standard of review and 

describing federal requirements for a pre-filing order based on a vexatious litigant 

determination). We therefore vacate the district court’s April 4, 2018 order to the 

extent that it deems O’Neal a vexatious litigant and imposes a pre-filing restriction. 

In all other respects, we affirm. 

We reject as without merit O’Neal’s contentions regarding the district 

court’s jurisdiction to rule on defendants’ post-judgment motion to designate 

O’Neal a vexatious litigant and judicial bias.

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

in the opening brief, Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009), and 

we do not consider arguments incorporated by reference into the briefs, see Indep.

Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003).

All pending motions and requests are denied.

The parties shall bear their own costs on appeal.

AFFIRMED in part, VACATED in part.