FILED
NOT FOR PUBLICATION APR 21 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TONY D. PENWELL, No. 14-36075
Plaintiff - Appellant, D.C. No. 2:05-cv-00831-JLR
v.
MEMORANDUM*
ROBIN CLEARY, Detective, Burien
Police Dept; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Submitted April 13, 2016**
Before: FARRIS, TALLMAN, and BYBEE, Circuit Judges.
Tony D. Penwell appeals pro se from the district court’s summary judgment
in his 42 U.S.C. § 1983 action alleging various federal claims arising out of his
arrest and transfer to jail. We have jurisdiction under 28 U.S.C. § 1291. We
*
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).
review de novo. Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (en banc).
We may affirm on any basis supported by the record. Enlow v. Salem-Keizer
Yellow Cab Co., Inc., 389 F.3d 802, 811 (9th Cir. 2004). We affirm.
The district court properly granted summary judgment on Penwell’s due
process claims alleging deprivation of property because Penwell had an adequate
postdeprivation remedy under Washington law. See Hudson v. Palmer, 468 U.S.
517, 533 (1984) (“[A]n unauthorized intentional deprivation of property by a state
employee does not constitute a violation of the procedural requirements of the Due
Process Clause of the Fourteenth Amendment if a meaningful postdeprivation
remedy for the loss is available.”); Wright v. Riveland, 219 F.3d 905, 918 (9th Cir.
2000) (concluding that Washington provides adequate postdeprivation remedies).
The district court properly granted summary judgment on Penwell’s claims
regarding lack of privacy because Penwell failed to raise a genuine dispute of
material fact as to whether any female officers or inmates saw him naked. See
Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996) (“[M]ere
allegation and speculation do not create a factual dispute for purposes of summary
judgment.”).
To the extent that Penwell challenges the execution of the search warrant or
his arrest, his claims are Heck-barred because success on the claims would
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necessarily imply the invalidity of his criminal conviction, and Penwell has failed
to allege facts sufficient to show that his conviction has been invalidated. See
Heck v. Humphrey, 512 U.S. 477, 487 (1994) (if “a judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction or sentence . . .
the complaint must be dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated”).
The district court did not abuse its discretion by striking Penwell’s motion
for leave to amend his complaint because amendment would have been futile. See
Nurse v. United States, 226 F.3d 996, 1000 (9th Cir. 2000) (setting forth standard
of review for district court’s decision to strike matter pursuant to Fed. R. Civ. P.
12(f)); see also Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004) (district
court may deny motion to amend based on futility of amendment).
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).
AFFIRMED.
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