                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 18 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CHARLES L. CADDELL,                              No. 10-36110

              Plaintiff - Appellant,             D.C. No. 6:10-cv-00011-DWM

  v.
                                                 MEMORANDUM *
HELENA ELDER HOUSING, INC.; et
al.,

              Defendants - Appellees.



CHARLES L. CADDELL,                              No. 11-35510

              Plaintiff - Appellant,             D.C. No. 6:11-cv-00020-DWM

  v.

CITY OF HELENA; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                            for the District of Montana
                    Donald W. Molloy, District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                            Submitted October 9, 2012 **

Before:        RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.

      In these consolidated appeals, Charles L. Caddell appeals pro se from the

district court’s judgments in his actions against the City of Helena (“the City”) and

Helena Elder Housing, Inc. (“HEH”) in connection with two citations Caddell was

issued for disorderly conduct. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo. Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003) (summary

judgment); Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002) (res

judicata); Nelson v. Heiss, 271 F.3d 891, 893 (9th Cir. 2001) (Fed. R. Civ. P.

12(b)(6) dismissal). We affirm.

      In No. 10-36110, the district court properly granted summary judgment for

the City because Caddell failed to establish a genuine dispute of material fact as to

whether the alleged federal constitutional violations resulted from an official city

policy, custom, or practice. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-

91 (1978) (setting forth requirements for a § 1983 claim of municipal liability).

      The district court properly dismissed Caddell’s due process claims against

HEH because Caddell failed to allege the deprivation of a protected liberty or



          **
             The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                           2                                     10-36110
property interest. See Shanks v. Dressel, 540 F.3d 1082, 1090 (9th Cir. 2008)

(procedural due process violation requires a deprivation of a protected liberty or

property interest by the government and lack of process); see also Miller v. Reed,

176 F.3d 1202, 1205-06 (9th Cir. 1999) (there is no fundamental right to drive, and

denying plaintiff a driver’s license did not unconstitutionally impede right to

interstate travel).

       The district court properly dismissed Caddell’s equal protection claims

against HEH because Caddell failed to allege facts demonstrating a discriminatory

intent. See Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1026 (9th

Cir. 1998) (equal protection claim “must plead intentional unlawful discrimination

or allege facts that are at least susceptible of an inference of discriminatory

intent”).

       The district court did not abuse its discretion in dismissing Caddell’s

complaint without leave to amend because amendment would have been futile. See

Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1530 (9th Cir. 1995) (district court does not

abuse its discretion to deny leave to amend where it “could reasonably conclude

that further amendment would be futile”).

       The district court did not abuse its discretion in declining to exercise

supplemental jurisdiction over the remaining state law claims after it properly


                                           3                                      10-36110
dismissed Caddell’s federal claims. See 28 U.S.C. § 1367(c)(3); Warren v. Fox

Family Worldwide, Inc., 328 F.3d 1136, 1143 n.7 (9th Cir. 2003).

      Caddell’s contentions concerning whether the district court conducted a de

novo review of the magistrate judge’s findings and recommendations are

unsupported by the record.

      In No. 11-35510, the district court properly dismissed Caddell’s second

action against the City and HEH as barred by the doctrine of res judicata because

Caddell raised, or could have raised, these claims in his earlier action that involved

these same defendants and was decided on the merits. See Stewart, 297 F.3d at

956 (res judicata bars litigation in a subsequent action of “‘any claims that were

raised or could have been raised’ in a prior action” (emphasis and citation

omitted)); see also Beard v. Sheet Metal Workers Union, Local 150, 908 F.2d 474,

477 n.3 (9th Cir. 1990) (a dismissal with prejudice constitutes a final judgment on

the merits for purposes of res judicata).

      Caddell’s contentions concerning the removal of this case from state court

are unpersuasive.

      In both Nos. 10-36110 and 11-35510, we do not consider matters not

specifically and distinctly raised and argued in the opening briefs, or issues raised




                                            4                                   10-36110
for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir.

2009) (per curiam).

      Caddell’s “motion for relief from consequences of lower court order,” filed

on January 30, 2012, is denied as unnecessary.

      AFFIRMED.




                                          5                                   10-36110
