Anthony Weimer v. Google, Inc.

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 16 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY WEIMER, No. 19-35009
Plaintiff-Appellant, D.C. No. 9:18-cv-00078-DLC-JCL
v.
MEMORANDUM*
GOOGLE, INC.; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, District Judge, Presiding
Submitted November 9, 2020**
Before: THOMAS, Chief Judge, TASHIMA and W. FLETCHER, Circuit Judges.
Anthony Weimer appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging federal and state law claims. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s
dismissal under Federal Rule of Civil Procedure 12(b)(6). Cervantes v.
*
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).
Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th Cir. 2011). We affirm.
The district court properly dismissed Weimer’s claims against defendants
Google, Inc. and Microsoft Corporation because even assuming he stated a
plausible claim against them, they are immune under the Communications
Decency Act (“CDA”). See 47 U.S.C. § 230(c)(1); Fair Housing Council of San
Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008)
(CDA provides interactive computer service providers immunity from civil
liability arising from content created by third parties). We reject as without merit
Weimer’s contention that § 230(c)(2) of the CDA applies.
The district court properly dismissed Weimer’s Federal Tort Claims Act
(“FTCA”) claim for lack of subject matter jurisdiction because Weimer failed to
exhaust his administrative remedies prior to bringing suit. See 28 U.S.C. § 2675(a)
(setting forth FTCA’s administrative exhaustion requirement); McNeil v. United
States, 508 U.S. 106, 113 (1993) (the FTCA bars a claimant from bringing suit in
federal court unless the claimant has first exhausted administrative remedies).
The district court did not err in deciding the motions to dismiss without
convening a three-judge panel. See 28 U.S.C. § 2284(a).
We reject as without merit Weimer’s contention that defendants failed to
respond to his statement of undisputed facts.
We do not consider matters not specifically and distinctly raised and argued
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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).
All pending motions are denied.
AFFIRMED.
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