                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                         FILED
                             FOR THE NINTH CIRCUIT                          APR 20 2016

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

NICHOLAS E. DIBS,                                No. 13-55311

               Plaintiff - Appellant,            D.C. No. 2:10-cv-04858-DSF-JEM

 v.
                                                 MEMORANDUM*
NORWALK-LA MIRADA UNIFIED
SCHOOL DISTRICT; et al.,

               Defendants - Appellees.


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

                             Submitted April 13, 2016**

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

      Nicholas E. Dibs appeals pro se from the district court’s judgment in his 42

U.S.C. § 1983 action alleging constitutional and state law claims arising from his

termination as a substitute teacher. We have jurisdiction under 28 U.S.C. § 1291.


          *
             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).
We review de novo. Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034,

1040 (9th Cir. 2011) (dismissal under Fed. R. Civ. P. 12(b)(6)); Corales v. Bennett,

567 F.3d 554, 562 (9th Cir. 2009) (summary judgment). We may affirm on any

basis supported by the record, Corales, 567 F.3d at 562, and we affirm.

       The district court properly dismissed Dibs’s substantive due process claim

because Dibs failed to allege facts sufficient to show that he was deprived of any

property interest. See Cal. Educ. Code § 44953 (“Governing boards of school

districts may dismiss substitute employees at any time at the pleasure of the

board.”); Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998)

(explaining that “[t]o establish a substantive due process claim, a plaintiff must . . .

show a government deprivation of life, liberty, or property[,]” and that “[i]n

California, the terms and conditions of public employment are generally fixed by

statute . . . not by contract (even if one is involved)” (citation and internal

quotation marks omitted)).

       The district court did not abuse its discretion by dismissing Dibs’s due

process claim without leave to amend because further amendment would have been

futile. See Cervantes, 656 F.3d at 1041 (setting forth standard of review and

explaining that dismissal without leave to amend is proper when amendment would

be futile).


                                            2                                     13-55311
      Summary judgment on Dibs’s First Amendment claim was proper because

Dibs failed to raise a genuine dispute of material fact as to whether his speech to

students in his class was anything other than speech as a public employee. See

Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 961-62 (9th Cir. 2011) (setting

forth five-step inquiry for measuring the legality of the government’s curtailment

of employee speech in the workplace and explaining that failure to meet one step

ends the inquiry); id. at 957 (holding no First Amendment violation because when

“a high school . . . teacher[] goes to work and performs the duties he is paid to

perform, he speaks not as an individual, but as a public employee”).

      We reject as unsupported Dibs’s contention that the district court failed to

conduct a de novo review of the magistrate judge’s recommendations.

      AFFIRMED.




                                           3                                    13-55311
