FILED
NOT FOR PUBLICATION DEC 22 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH PATRICK CUVIELLO, I, No. 14-16793
Plaintiff-Appellant, D.C. No. 5:13-cv-04951-BLF
v.
MEMORANDUM*
FELD ENTERTAINMENT, INC., DBA
Ringling Bros and Barnum & Bailey
Circus; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Beth Labson Freeman, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Joseph Patrick Cuviello, I, appeals pro se from the district court’s order
dismissing his 42 U.S.C. § 1983 action alleging a First Amendment violation and
malicious prosecution stemming from defendants’ action brought against Cuviello
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under the Workplace Violence Safety Act, Cal. Civ. Proc. Code § 527.8. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s
dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6) and under
California’s anti-Strategic Lawsuits Against Public Participation (“anti-SLAPP”)
statute. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102 (9th Cir. 2003). We
affirm.
The district court properly granted defendants’ special motion to strike
Cuviello’s malicious prosecution claim under California’s anti-SLAPP statute
because Cuviello failed to show a probability of prevailing on the merits as the
action was precluded by law. See Makaeff v. Trump Univ., LLC, 715 F.3d 254, 261
(9th Cir. 2013) (once a defendant makes a prima facie showing that the plaintiff’s
suit arises from defendant’s protected activity, the burden then shifts to the plaintiff
to establish a reasonable probability that he will prevail on his claim); Robinzine v.
Vicory, 50 Cal. Rptr. 3d 65, 66 (Ct. App. 2006) (“We hold as a matter of law that a
malicious prosecution cause of action does not arise from an unsuccessful petition
filed under section 527.8.”); see also Lewis v. Tel. Employees Credit Union, 87
F.3d 1537, 1545 (9th Cir. 1996) (when there is no state supreme court opinion
addressing a question of state law, a federal court is obligated to follow the
decisions of the state’s intermediate appellate courts absent convincing evidence
2 14-16793
that the state supreme court would decide the issue differently).
The district court properly dismissed Cuviello’s First Amendment claim
because Cuviello failed to allege facts sufficient to establish that defendants were
state actors for purposes of § 1983. See Franklin v. Fox, 312 F.3d 423, 444-45 (9th
Cir. 2002) (tests for determining whether a private individual’s actions amount to
state action).
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.
3 14-16793