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 2020-05

Andrew Andersen v. Marisela Montes ( 2020 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                         MAY 14 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREW ANDERSEN,                                No. 19-15969
Plaintiff-Appellant,            D.C. No. 1:16-cv-00236-DAD-SAB
v.
MEMORANDUM*
MARISELA MONTES, Commissioner of
California Board of Parole Hearings; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted May 6, 2020**
Before:      BERZON, N.R. SMITH, and MILLER, Circuit Judges.
California state prisoner Andrew Andersen appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging a First
Amendment claim challenging the Board of Parole Hearings (“BPH”) regulatory
scheme for early parole determinations for prisoners with life sentences. We have
*
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).
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to
state a claim under 28 U.S.C. § 1915A. Resnick v. Hayes,
    213 F.3d 443
    , 447 (9th
Cir. 2000). We affirm.
The district court properly dismissed Andersen’s First Amendment facial
challenge to the BPH regulations because Andersen failed to allege facts sufficient
to show that the BPH regulations, Cal. Code. Regs. tit. 15, § 2281, were overly
broad and therefore invalid on their face. See United States v. Stevens,
    559 U.S. 460
    , 472 (2010) (explaining that to succeed on a facial attack under the First
Amendment, a plaintiff must establish that “a substantial number of [the statute’s]
applications are unconstitutional, judged in relation to the statute’s plainly
legitimate sweep” (citation and internal citations omitted)); City of Houston v. Hill,
    482 U.S. 451
    , 458 (1987) (“Only a statute that is substantially overbroad may be
invalidated on its face.”).
To the extent that Andersen challenges the district court’s dismissal of his
“as-applied” challenge to the BPH regulations, Anderson’s as-applied challenge
was the subject of a prior appeal, see Andersen v. Montes, Case No. 17-16610. In
17-16610, this court concluded that the district court properly dismissed the claim.
Andersen v. Montes,
    708 Fed. Appx. 429 
    (9th Cir. 2017).
The district court did not abuse its discretion by denying Andersen further
leave to amend because amendment would have been futile. See Cervantes v.
2                                     19-15969
Countrywide Home Loans,
    656 F.3d 1034
    , 1041 (9th Cir. 2011) (setting forth
standard of review and explaining that a district court may deny leave to amend if
amendment would be futile); see also Chodos v. West Publ’g Co.,
    292 F.3d 992
    ,
1003 (9th Cir. 2002) (a district court’s discretion to deny leave to amend is
particularly broad when it has already granted leave to amend).
We do not consider arguments and allegations raised for the first time on
appeal, or arguments not specifically or distinctly raised in the opening brief. See
Padgett v. Wright,
    587 F.3d 983
    , 985 n.2 (9th Cir. 2009).
AFFIRMED.
3                                     19-15969