                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 30 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

TONY LEE HILL,                                  No. 16-56145

                Plaintiff-Appellant,            D.C. No. 2:13-cv-02706-SVW-KES

 v.
                                                MEMORANDUM*
DANIEL MORENO, individual and official
capacity; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                       for the Central District of California
                   Stephen V. Wilson, District Judge, Presiding

                             Submitted June 26, 2017**

Before:      PAEZ, BEA, and MURGUIA, Circuit Judges.

      Tony Lee Hill appeals pro se from the district court’s summary judgment in

his 42 U.S.C. § 1983 action alleging excessive force during his arrest. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo, Toguchi v. Chung, 391

F.3d 1051, 1056 (9th Cir. 2004), and we affirm.


      *
             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).
      The district court properly granted summary judgment on Hill’s excessive

force claim because Hill failed to raise a genuine dispute of material fact as to

whether defendant Moreno used excessive force or whether the remaining

defendants participated in Hill’s arrest. See Graham v. Connor, 490 U.S. 386, 396

(1989) (setting forth standard for claim of excessive force during arrest); Jones v.

Williams, 297 F.3d 930, 934 (9th Cir. 2002) (“In order for a person acting under

color of state law to be liable under section 1983 there must be a showing of

personal participation in the alleged rights deprivation . . . .”).

      The district court properly dismissed Hill’s claims concerning a conspiracy

to deny him a fair criminal trial because success on those claims would necessarily

imply the invalidity of his conviction. See Heck v. Humphrey, 512 U.S. 477, 486-

87 (1994) (barring § 1983 claim which would necessarily imply the invalidity of a

conviction, unless the plaintiff can show that the conviction has been invalidated).

      The district court did not abuse its discretion by denying Hill leave to file a

Third Amended Complaint because further amendment would be futile. See

Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011)

(setting forth standard of review and explaining that dismissal without leave to

amend is proper when amendment would be futile); Chodos v. West Publ’g Co.,

292 F.3d 992, 1003 (9th Cir. 2002) (“[W]hen a district court has already granted a

plaintiff leave to amend, its discretion in deciding subsequent motions to amend is


                                            2                                   16-56145
particularly broad.” (citation and internal quotation marks omitted)).

      The district court did not abuse its discretion by denying Hill’s motion for

appointment of counsel because Hill failed to demonstrate exceptional

circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting

forth standard of review and exceptional circumstances requirement for

appointment of counsel).

      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).

      Hill’s requests for release from prison, set forth in his briefs, are denied.

      Hill’s motion for leave to file a second supplement to the opening brief

(Docket Entry No. 15) is granted. The Clerk shall file the second supplement to

the opening brief (Docket Entry No. 16).

      AFFIRMED.




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