                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                       NOV 7 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT



 C. GORDON DILLARD,                              No. 14-35488

               Plaintiff-Appellant,              D.C. No. 1:13-cv-00373-CL

   v.
                                                 MEMORANDUM*
 STATE OF OREGON; et al.,

               Defendants-Appellees.

                    Appeal from the United States District Court
                             for the District of Oregon
                     Owen M. Panner, District Judge, Presiding

                            Submitted October 25, 2016**

Before:       LEAVY, GRABER, and CHRISTEN, Circuit Judges.

        C. Gordon Dillard appeals pro se from the district court’s judgment

dismissing his 42 U.S.C. § 1983 action alleging federal and state law violations in

connection with the prosecution of a charge against him for encouraging child

sexual abuse. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a

        *
             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).
dismissal for failure to state a claim under Federal Rule of Civil Procedure

12(b)(6), and we may affirm on an basis supported by the record. Thompson v.

Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm.

      The district court properly dismissed Dillard’s search and seizure claim

because Dillard failed to allege facts sufficient to state a plausible claim. See

Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (though pro se pleadings are

liberally construed, plaintiff must allege sufficient facts to state a plausible claim);

Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004) (a party’s

conclusory allegations, unwarranted deductions of fact, or unreasonable inferences

need not be accepted as true).

      Dismissal of Dillard’s malicious prosecution claim was proper because

Dillard failed to allege facts sufficient to show that the defendants lacked probable

cause at the time of his prosecution and conviction. See Teegarden v. State ex rel.

Oregon Youth Auth., 348 P.3d 273, 280 (Or. 2015) (elements of malicious

prosecution claim); Blandino v. Fischel, 39 P.3d 258, 261 (Or. 2002) (“In the

context of a malicious prosecution claim, ‘probable cause’ refers to the subjective

and objectively reasonable belief that the defendant committed a crime.”).




                                            2                                     14-35488
      Because Dillard failed to state an underlying constitutional violation,

dismissal of Dillard’s Monell claims against defendants Josephine County and City

of Grant’s Pass, and his official capacity claims against defendants Campbell,

Sanchez, Henner, Brissette, and Gaunt, was proper. See Simmons v. Navajo Cty.,

Ariz., 609 F.3d 1011, 1021 (9th Cir. 2010) (“Because we hold that there was no

underlying constitutional violation, the [plaintiffs] cannot maintain a claim for

municipal liability.”).

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

amend because amendment would have been futile. See Cervantes v. Countrywide

Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (stating standard of review

and explaining that district court may dismiss without leave to amend where

amendment would be futile).

      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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