FILED
NOT FOR PUBLICATION MAY 01 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM JAY PRICE, No. 14-15708
Plaintiff - Appellant, D.C. No. 1:13-cv-01141-MJS
v.
MEMORANDUM*
STEPHANIE BRAZIER,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Michael J. Seng, Magistrate Judge, Presiding**
Submitted April 22, 2015***
Before: GOODWIN, BYBEE, and CHRISTEN, Circuit Judges.
William Jay Price, a civilly committed resident of California’s Sex Offender
Commitment Program, appeals pro se from the district court’s judgment dismissing
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Price 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).
his 42 U.S.C. § 1983 action alleging First and Fourteenth Amendment violations.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal
under 28 U.S.C. § 1915(e)(2)(B)(ii). Barren v. Harrington, 152 F.3d 1193, 1194
(9th Cir. 1998) (order). We affirm.
The district court properly dismissed Price’s First Amendment retaliation
claim regarding termination of therapy because Price failed to allege facts
sufficient to show that defendant Brazier’s actions did not reasonably advance a
legitimate correctional goal. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th
Cir. 2005) (setting forth the elements of a retaliation claim in the prison context);
Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (“The plaintiff bears the burden
of pleading and proving the absence of legitimate correctional goals for the
conduct of which he complains.”). To the extent that Price intended to raise a First
Amendment retaliation claim regarding a failure to protect, dismissal would have
been proper because Price failed to allege facts sufficient to show that Brazier’s
actions had a chilling effect. See Rhodes, 408 F.3d at 568 (a plaintiff must show
that the adverse action at issue “would chill or silence a person of ordinary
firmness from future First Amendment activities.” (citation and internal quotation
marks omitted)).
The district court properly dismissed Price’s Fourteenth Amendment claim
2 14-15708
because Price failed to allege facts sufficient to show that Brazier’s decisions were
“a substantial departure from accepted professional judgment, practice, or
standards.” See Youngberg v. Romeo, 457 U.S. 307, 323 (1982) (decisions of
professionals are “presumptively valid”); see also Houghton v. South, 965 F.2d
1532, 1536 (9th Cir. 1992) (plaintiff must prove that the mental health
professional’s decisions reflected a “conscious indifference amounting to gross
negligence”).
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).
AFFIRMED.
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