Bradley Smith v. Nester Lopez;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRADLEY SMITH,
Plaintiff-Appellant,
v.
NESTER LOPEZ; et al.,
Defendants-Appellees.
No. 15-16838
D.C. No. 2:13-cv-00892-GMN-
PAL
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief Judge, Presiding
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges
Bradley Smith appeals pro se from the district court’s judgment dismissing
his action under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), alleging claims arising from a workplace dispute.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal
* 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).
FILED
MAR 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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under Fed. R. Civ. P. 12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010).
We affirm.
The district court properly dismissed Smith’s Fourteenth Amendment equal
protection claim because Smith failed to allege facts sufficient to show that he was
treated differently from other similarly situated individuals. See Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (elements of “class of one” equal
protection claim).
The district court properly dismissed Smith’s First Amendment retaliation
claim because Smith failed to allege facts sufficient to show that he attempted to
engage in protected speech. See Coszalter v. City of Salem, 320 F.3d 968, 973 (9th
Cir. 2003) (to establish a First Amendment retaliation claim, plaintiff must show
he spoke on a matter of public concern; speech that concerns individual personnel
disputes and grievances is generally not of public concern); see also Blaisdell v.
Frappiea, 729 F.3d 1237, 1246 (9th Cir. 2013) (“[A]ssociational rights only extend
to groups engaged in expressive activities.”).
The district court properly dismissed Smith’s Ninth Amendment claim
because the Ninth Amendment “has never been recognized as independently
securing any constitutional right, for purposes of pursuing a civil rights claim.”
Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986).
We reject as unsupported by the record Smith’s contention that the district

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court was biased against him.
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 893, 985 n.2 (9th Cir. 2009).
AFFIRMED.

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