David Morgan v. Cochise County Board of Supv. ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 17 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID M. MORGAN, No. 20-17034
Plaintiff-Appellant, D.C. No. 4:19-cv-00571-DCB
v.
MEMORANDUM*
COCHISE COUNTY BOARD OF
SUPERVISORS; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted September 14, 2021**
Before: PAEZ, NGUYEN, and OWENS, Circuit Judges.
David M. Morgan appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging First Amendment violations. 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 Federal Rule of Civil Procedure
*
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).
12(b)(6). Sheppard v. David Evans & Assoc., 694 F.3d 1045, 1048 (9th Cir. 2012).
We affirm.
The district court properly dismissed Morgan’s First Amendment malicious
prosecution claims for failure to state a plausible claim. See Hartman v. Moore,
547 U.S. 250, 261-62 (2006) (“A Bivens (or § 1983) action for retaliatory
prosecution will not be brought against the prosecutor, who is absolutely immune
from liability for the decision to prosecute . . . .”); see also Nieves v. Bartlett, 139
S. Ct. 1715, 1722 (2019) (“[P]laintiffs in retaliatory prosecution cases . . . must
also prove as a threshold matter that the decision to press charges was objectively
unreasonable because it was not supported by probable cause.”).
The district court properly dismissed Morgan’s claims arising from court
and jail staff’s allegedly retaliatory actions because these actions would not chill a
person of ordinary firmness from continuing to engage in the protected activity.
See Sampson v. County of L.A. by & through L.A. County Dep’t of Child. & Fam.
Servs., 974 F.3d 1012, 1019 (9th Cir. 2020) (discussing the requirements of a First
Amendment retaliation claim).
The district court properly dismissed Morgan’s claims of respondeat
superior liability under Arizona law against defendant Board of Supervisors
because Morgan failed to comply with Arizona state law Notice of Claim rules.
See Ariz. Rev. Stat. § 12-821.01 (requiring plaintiffs to serve notice of claims
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against a public entity within 180 days of accrual of cause of action).
The district court did not abuse its discretion by dismissing Morgan’s
complaint without 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 grounds for dismissing without leave to amend).
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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