                                                                             FILED
                            NOT FOR PUBLICATION                               JAN 27 2016

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


SHONDEL LAMAR LARKIN,                            No. 14-56213

               Plaintiff - Appellant,            D.C. No. 2:12-cv-10503-DSF-OP

 v.
                                                 MEMORANDUM*
K. THOMAS, Sr., Correctional Lieutenant,
sued in official capacity and individual
capacity,

               Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                            Submitted January 20, 2016**

Before:        CANBY, TASHIMA, and NGUYEN, Circuit Judges.

      California state prisoner Shondel Lamar Larkin appeals pro se from the

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

retaliation in violation of the First Amendment. We have jurisdiction under 28

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1291. We review de novo the district court’s dismissal under Federal

Rule of Civil Procedure 12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir.

2010). We affirm.

      The district court properly dismissed Larkin’s action because Larkin failed

to allege facts sufficient to show that defendant’s actions did not reasonably

advance a legitimate correctional goal. See Rhodes v. Robinson, 408 F.3d 559,

567-68 (9th Cir. 2005) (setting forth elements of a retaliation claim in the prison

context); Pratt v. Rowland, 65 F.3d 802, 806-07 (9th Cir. 1995) (“The plaintiff

bears the burden of pleading and proving the absence of legitimate correctional

goals for the conduct of which he complains . . . . [Courts] should afford

appropriate deference and flexibility to prison officials in the evaluation of

proffered legitimate penological reasons for the conduct alleged to be retaliatory.”

(citations and quotations marks omitted)); see also Nat’l Ass’n for the

Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049

(9th Cir. 2000) (in determining whether the complaint states a claim for relief, “we

may consider facts contained in documents attached to the complaint”).

      The district court did not abuse its discretion in denying Larkin leave to

amend after providing Larkin with an opportunity to amend and concluding that

further amendment would be futile. See Cervantes v. Countrywide Home Loans,


                                           2                                     14-56213
Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review and

noting that district court may dismiss without leave to amend when amendment

would be futile).

      We do not consider Larkin’s argument that his due process rights were

violated because the operative complaint did not allege a due process claim.

      We reject as unsupported by the record Larkin’s argument that the district

court erroneously denied him discovery.

      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) (per curiam).

      AFFIRMED.




                                           3                                      14-56213
