NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 24 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRY LEE O’BRIEN, No. 18-16962
Plaintiff-Appellant, D.C. No. 2:17-cv-00166-GMS-
DMF
v.
CARLA HACKER-AGNEW, Warden, MEMORANDUM*
Warden; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, Chief Judge, Presiding
Submitted January 15, 2019**
Before: TROTT, TALLMAN, and CALLAHAN, Circuit Judges.
Arizona state prisoner Terry Lee O’Brien appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging various claims.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Wilhelm v.
Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012) (dismissal under 28 U.S.C.
*
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).
§ 1915A); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (dismissal under
28 U.S.C. § 1915(e)(2)(B)(ii)). We affirm.
The district court properly dismissed as frivolous O’Brien’s constitutional
claims relating to the prison’s alleged broadcasting of psychotic sounds because
these claims lacked any arguable basis in law or fact. See Neitzke v. Williams, 490
U.S. 319, 325 (1989) (under § 1915(e)(2), a ‘frivolous’ claim lacks an arguable
basis either in law or in fact; “[the] term ‘frivolous’ . . . embraces not only the
inarguable legal conclusion, but also the fanciful factual allegation”).
The district court properly dismissed O’Brien’s retaliation and deliberate
indifference claims because O’Brien failed to allege facts sufficient to state a
plausible claim. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010)
(although pro se pleadings are to be construed liberally, a plaintiff must present
factual allegations sufficient to state a plausible claim for relief); Rhodes v.
Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (elements of a retaliation claim in
the prison context); Toguchi v. Chung, 391 F.3d 1051, 1057-58 (9th Cir. 2004)
(elements of a deliberate indifference claim).
The district court did not abuse its discretion in denying O’Brien further
leave to amend because amendment would have been futile. See Gordon v. City of
Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010) (setting forth standard of review and
explaining that leave to amend may be denied because amendment would be
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futile).
The district court did not abuse its discretion in denying O’Brien’s motions
to supplement the third amended complaint. See Bias v. Moynihan, 508 F.3d 1212,
1223 (9th Cir. 2007) (standard of review); see also D. Ariz. Loc. R. 3.4 (“All
complaints and applications to proceed in forma pauperis by incarcerated persons
must be . . . on forms approved by the Court and in accordance with the
instructions provided with the forms . . . .”).
The district court did not abuse its discretion in denying O’Brien’s motion to
take depositions as moot. See Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1093
(9th Cir. 2003) (standard of review).
We reject as meritless O’Brien’s contentions that the district court violated
his due process rights and was deliberately indifferent to his safety.
We do not consider arguments raised for the first time on appeal, or matters
not specifically and distinctly raised and argued in the opening brief. See Padgett
v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). We do not consider facts not
presented to the district court. See United States v. Elias, 921 F.2d 870, 874 (9th
Cir. 1990).
All pending motions are denied.
AFFIRMED.
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