NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HENRY MALASKY, 

Plaintiff-Appellant, 

 v. 

SANDRA ESPOSITO; et al., 

Defendants-Appellees, 

No. 19-15161 

D.C. No. 4:16-cv-04102-DMR 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Donna M. Ryu, Magistrate Judge, Presiding**

Submitted October 15, 2019***

Before: FARRIS, LEAVY, and RAWLINSON, Circuit Judges. 

Henry Malasky appeals pro se from the district court’s judgment dismissing 

his action alleging violations of the Fair Debt Collection Practices Act (“FDCPA”), 

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

except as provided by Ninth Circuit Rule 36-3.

** The parties consented to proceed before a magistrate judge. See 28 

U.S.C. § 636(c).

*** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2). Malasky’s request for oral 

argument, set forth in the opening brief, is denied.

FILED

OCT 23 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 19-15161 

the Racketeer Influenced and Corrupt Organizations Act (“RICO”), and other 

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

district court’s dismissal under Federal Rule of Civil Procedure 12(b)(6). 

Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th Cir. 2011). 

We affirm.

The district court properly dismissed Malasky’s FDCPA claim because 

Malasky failed to allege facts sufficient to show a qualifying “debt” or that 

defendants were “debt collectors” within the meaning of the FDCPA. See 15 

U.S.C. § 1692a(5) (defining “debt” under the FDCPA); 15 U.S.C. § 1692a(6) 

(defining “debt collector” under the FDCPA); Hebbe v. Pliler, 627 F.3d 338, 341-

42 (9th Cir. 2010) (although pro se pleadings are liberally construed, plaintiff must 

allege facts sufficient to state a plausible claim).

The district court properly dismissed Malasky’s RICO and retaliation claims

because Malasky failed to allege facts sufficient to state a plausible claim. See 

West v. Atkins, 487 U.S. 42, 48 (1988) (“To state a claim under § 1983, a plaintiff 

must . . . show that the alleged deprivation was committed by a person acting under 

color of state law.”); Hebbe, 627 F.3d at 341-42; Sanford v. MemberWorks, Inc., 

625 F.3d 550, 557 (9th Cir. 2010) (setting forth elements of a civil RICO claim). 

The district court properly dismissed Malasky’s state law fraud claim 

because Malasky failed to allege facts sufficient to satisfy the heightened pleading 
3 19-15161 

standard set forth in Federal Rule of Civil Procedure 9(b). See Kearns v. Ford 

Motor Co., 567 F.3d 1120, 1124-25 (9th Cir. 2009) (discussing heightened 

pleading standard under Rule 9(b), which applies to state law claims alleging 

fraudulent conduct).

The district court properly dismissed Malasky’s declaratory relief claim 

because there was no other claim upon which to request relief. See Stock W., Inc. 

v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 

1989) (in order “[t]o obtain declaratory relief in federal court, there must be an 

independent basis for jurisdiction”).

The district court did not abuse its discretion by taking judicial notice of 

documents from Malasky’s prior Texas federal action and the California state court 

action. See Lee v. City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001) 

(setting forth standard of review and circumstances in which the district court may 

take judicial notice of matters of public record in ruling on a motion to dismiss).

The district court did not abuse its discretion by denying Malasky’s motion 

for judicial notice. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) 

(“Courts may only take judicial notice of adjudicative facts that are ‘not subject to 

reasonable dispute.’” (quoting Fed. R. Evid. 201(b))); Lee, 250 F.3d at 689 (setting 

forth standard of review).

The district court did not abuse its discretion by denying leave to amend
4 19-15161 

because amendment would be futile. See Cafasso, U.S. ex rel. v. Gen. Dynamics 

C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (setting forth the standard of 

review and explaining that a “district court’s discretion to deny leave to amend is 

particularly broad where [the] plaintiff has previously amended the complaint” 

(citation and internal quotation marks omitted)).

We reject as unsupported by the record Malasky’s contentions that the 

district court violated his constitutional rights or that the district court failed to give 

“full faith and credit” to his marital settlement agreement.

AFFRIMED.