Ronald Stevenson v. County of Churchill , 617 F. App'x 805 ( 2015 )

FILED
NOT FOR PUBLICATION SEP 25 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD ALEX STEVENSON, No. 14-17422
Plaintiff - Appellant, D.C. No. 3:14-cv-00137-RCJ-
WGC
v.
COUNTY OF CHURCHILL; ARTHUR MEMORANDUM*
E. MALLORY,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted September 21, 2015**
Before: REINHARDT, LEAVY, and BERZON, Circuit Judges.
Ronald Alex Stevenson, a Nevada state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging a First
Amendment violation. We have jurisdiction under 28 U.S.C. § 1291. We review
*
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).
de novo. Hamilton v. Brown, 630 F.3d 889, 892 (9th Cir. 2011) (dismissal under
28 U.S.C. § 1915A); San Diego Cnty. Gun Rights Comm. v. Reno, 98 F.3d 1121,
1124 (9th Cir. 1996) (dismissal for lack of Article III standing). We affirm in part
and vacate in part.
The district court properly dismissed Stevenson’s action for lack of standing
because Stevenson failed to allege facts sufficient to show an injury in fact. See
Lopez v. Candaele, 630 F.3d 775, 785, 787 (9th Cir. 2010) (setting forth the
elements of Article III standing; injury in fact requires plaintiffs to “articulate a
concrete plan to violate the law in question by giving details about their future
speech such as when, to whom, where, or under what circumstances” (citations,
alterations, and internal quotation marks omitted)). Contrary to Stevenson’s
contention, “when plaintiffs challenge the constitutionality of a restriction on the
ground that it may unconstitutionally chill the First Amendment rights of parties
not before the court, they must still satisfy the rigid constitutional requirement that
plaintiffs must demonstrate an injury in fact to invoke a federal court’s
jurisdiction” Id. at 785 (citation and internal quotation marks omitted).
However, dismissal for lack of Article III standing is a dismissal for lack of
subject matter jurisdiction, not for failure to state a claim. See Maya v. Centex
Corp., 658 F.3d 1060, 1067 (9th Cir. 2011). Therefore, we vacate the judgment to
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the extent that it found the dismissal of this action constituted a strike under 28
U.S.C. § 1915(g). See Moore v. Maricopa Cnty. Sheriff’s Office, 657 F.3d 890,
893-95 (9th Cir. 2011) (a dismissal for lack of subject matter jurisdiction does not
constitute a “strike” for purposes of 28 U.S.C. § 1915(g); where a district court
determines that it does not have subject matter jurisdiction, “it is not possible for
the district court” to have dismissed alternatively for failure to state a claim).
Because we affirm for lack of standing, we do not consider Stevenson’s
arguments regarding the district court’s application of Heck v. Humphrey, 512 U.S.
477 (1994).
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) (per curiam).
All pending requests are denied.
AFFIRMED in part, VACATED in part.
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