                           NOT FOR PUBLICATION                           FILED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

RICHARD HERBERT,                                No. 16-56063

                Plaintiff-Appellant,            D.C. No. 2:15-cv-04680-SVW-JEM

 v.
                                                MEMORANDUM*
CVS PHARMACY, doing business as
Garfield Beach CVS LLC; et al.,

                Defendants-Appellees.

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

                           Submitted October 23, 2017**

Before:      LEAVY, WATFORD, and FRIEDLAND, Circuit Judges.

      Richard Herbert appeals pro se from the district court’s summary judgment

in his action alleging discrimination under 42 U.S.C. § 1981 and state law. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s

summary judgment on the basis of res judicata. City of Martinez v. Texaco


      *
             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).
Trading & Transp., Inc., 353 F.3d 758, 761 (9th Cir. 2003). We affirm.

      The district court properly granted summary judgment because Herbert’s

prior small claims action was based on the same primary right, there was a final

judgment on the merits, and the parties are in privity. See id. at 762 (elements of

res judicata under California law); see also Allstate Ins. Co. v. Mel Rapton, Inc., 92

Cal. Rptr. 2d 151, 155 (Ct. App. 2000) (under California law, a small claims court

judgment precludes further litigation on the same claim).

      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).

      AFFIRMED.




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