FILED
NOT FOR PUBLICATION JAN 27 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHONDEL LAMAR LARKIN, No. 14-56213
Plaintiff - Appellant, D.C. No. 2:12-cv-10503-DSF-OP
v.
MEMORANDUM*
K. THOMAS, Sr., Correctional Lieutenant,
sued in official capacity and individual
capacity,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted January 20, 2016**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
California state prisoner Shondel Lamar Larkin appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging
retaliation in violation of the First Amendment. We have jurisdiction under 28
*
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).
U.S.C. § 1291. We review de novo the district court’s dismissal under Federal
Rule of Civil Procedure 12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir.
2010). We affirm.
The district court properly dismissed Larkin’s action because Larkin failed
to allege facts sufficient to show that defendant’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 elements of a retaliation claim in the prison
context); Pratt v. Rowland, 65 F.3d 802, 806-07 (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 . . . . [Courts] should afford
appropriate deference and flexibility to prison officials in the evaluation of
proffered legitimate penological reasons for the conduct alleged to be retaliatory.”
(citations and quotations marks omitted)); see also Nat’l Ass’n for the
Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049
(9th Cir. 2000) (in determining whether the complaint states a claim for relief, “we
may consider facts contained in documents attached to the complaint”).
The district court did not abuse its discretion in denying Larkin leave to
amend after providing Larkin with an opportunity to amend and concluding that
further amendment would be futile. See Cervantes v. Countrywide Home Loans,
2 14-56213
Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review and
noting that district court may dismiss without leave to amend when amendment
would be futile).
We do not consider Larkin’s argument that his due process rights were
violated because the operative complaint did not allege a due process claim.
We reject as unsupported by the record Larkin’s argument that the district
court erroneously denied him discovery.
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.
3 14-56213