                                                                            FILED
                            NOT FOR PUBLICATION                              APR 21 2016

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



                             FOR THE NINTH CIRCUIT


TONY D. PENWELL,                                 No. 14-36075

               Plaintiff - Appellant,            D.C. No. 2:05-cv-00831-JLR

 v.
                                                 MEMORANDUM*
ROBIN CLEARY, Detective, Burien
Police Dept; et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Western District of Washington
                     James L. Robart, District Judge, Presiding

                             Submitted April 13, 2016**

Before:        FARRIS, TALLMAN, and BYBEE, Circuit Judges.

      Tony D. Penwell appeals pro se from the district court’s summary judgment

in his 42 U.S.C. § 1983 action alleging various federal claims arising out of his

arrest and transfer to jail. We have jurisdiction under 28 U.S.C. § 1291. We


          *
             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).
review de novo. Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (en banc).

We may affirm on any basis supported by the record. Enlow v. Salem-Keizer

Yellow Cab Co., Inc., 389 F.3d 802, 811 (9th Cir. 2004). We affirm.

      The district court properly granted summary judgment on Penwell’s due

process claims alleging deprivation of property because Penwell had an adequate

postdeprivation remedy under Washington law. See Hudson v. Palmer, 468 U.S.

517, 533 (1984) (“[A]n unauthorized intentional deprivation of property by a state

employee does not constitute a violation of the procedural requirements of the Due

Process Clause of the Fourteenth Amendment if a meaningful postdeprivation

remedy for the loss is available.”); Wright v. Riveland, 219 F.3d 905, 918 (9th Cir.

2000) (concluding that Washington provides adequate postdeprivation remedies).

      The district court properly granted summary judgment on Penwell’s claims

regarding lack of privacy because Penwell failed to raise a genuine dispute of

material fact as to whether any female officers or inmates saw him naked. See

Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996) (“[M]ere

allegation and speculation do not create a factual dispute for purposes of summary

judgment.”).

      To the extent that Penwell challenges the execution of the search warrant or

his arrest, his claims are Heck-barred because success on the claims would


                                          2                                   14-36075
necessarily imply the invalidity of his criminal conviction, and Penwell has failed

to allege facts sufficient to show that his conviction has been invalidated. See

Heck v. Humphrey, 512 U.S. 477, 487 (1994) (if “a judgment in favor of the

plaintiff would necessarily imply the invalidity of his conviction or sentence . . .

the complaint must be dismissed unless the plaintiff can demonstrate that the

conviction or sentence has already been invalidated”).

      The district court did not abuse its discretion by striking Penwell’s motion

for leave to amend his complaint because amendment would have been futile. See

Nurse v. United States, 226 F.3d 996, 1000 (9th Cir. 2000) (setting forth standard

of review for district court’s decision to strike matter pursuant to Fed. R. Civ. P.

12(f)); see also Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004) (district

court may deny motion to amend based on futility of amendment).

      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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