                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        OCT 3 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

PETER MICHAEL MABIE,                            No. 17-15856

                Plaintiff-Appellant,            D.C. No. 1:16-cv-01035-MJS

 v.
                                                MEMORANDUM*
T. HOGAN; et al.,

                Defendants-Appellees.

                  Appeal from the United States District Court
                      for the Eastern District of California
                  Michael J. Seng, Magistrate Judge, Presiding**

                         Submitted September 26, 2017***

Before:      SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.

      California state prisoner Peter Michael Mabie appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging excessive

force, retaliation, and free exercise claims. We have jurisdiction under 28 U.S.C.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             Mabie consented to proceed before a magistrate judge. See 28 U.S.C.
§ 636(c).
      ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1291. We review de novo a dismissal for failure to state a claim under 28 U.S.C.

§ 1915A. Hamilton v. Brown, 630 F.3d 889, 892 (9th Cir. 2011). We affirm.

      The district court properly dismissed Mabie’s excessive force claim because

Mabie failed to allege facts sufficient to show that defendant Hogan acted

“maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-

7 (1992) (explaining elements of excessive force claim in prison context).

      The district court properly dismissed Mabie’s free exercise claim because

Mabie failed to allege facts sufficient to show his practice of religion was

substantially burdened. See Jones v. Williams, 791 F.3d 1023, 1031 (9th Cir.

2015) (“A person asserting a free exercise claim must show that the government

action in question substantially burdens the person’s practice of [his] religion.”).

      The district court properly dismissed Mabie’s retaliation claim because

Mabie failed to allege facts sufficient to show that defendant Hogan took adverse

action against him because of his engagement in protected conduct, or that any

such action by Hogan chilled Mabie’s exercise of his First Amendment rights. See

Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (explaining elements of

retaliation claim in prison context).

      We do not consider Mabie’s arguments regarding defendant Perez because

                                          2                                     17-15856
Mabie failed to replead claims against Perez in his second amended complaint.

See Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 973 n.14, 974

n.15 (9th Cir. 2013) (failure to replead claims after dismissal with leave to amend

amounts to waiver).

      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). We do not

consider documents and facts not presented to the district court. See United States

v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not presented to

the district court are not part of the record on appeal.”).

      AFFIRMED.




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