                             NOT FOR PUBLICATION                            FILED
                      UNITED STATES COURT OF APPEALS                        MAR 21 2016
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


STEVEN R. RODRIGUEZ,                               No. 12-15676

                Plaintiff - Appellant,             D.C. No. 2:10-cv-00204-GEB-
                                                   CKD
    v.

CITY OF STOCKTON; et al.,                          MEMORANDUM*

                Defendants - Appellees.

                     Appeal from the United States District Court
                         for the Eastern District of California
                    Garland E. Burrell, Jr., District Judge, Presiding

                              Submitted March 15, 2016**

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

         Steven R. Rodriguez appeals pro se from the district court’s judgment

dismissing his 42 U.S.C. § 1983 action alleging that defendants conspired to arrest

and convict him.     We have jurisdiction under 28 U.S.C. § 1291. We review de

novo a dismissal for failure to state a claim under Federal Rule of Civil Procedure

         *
             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).
12(b)(6). Zadrozny v. Bank of N.Y. Mellon, 720 F.3d 1163, 1167 (9th Cir. 2013).

We may affirm on any basis supported the record. Johnson v. Riverside Healthcare

Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008). We affirm.

      The district court properly dismissed Rodriguez’s action as Heck-barred

because success in the action would necessarily imply the invalidity of his criminal

conviction, and Rodriguez 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”); Guerrero v. Gates, 442 F.3d 697, 703-04 (9th Cir. 2006) (claim of

conspiracy among police officers to bring false charges barred by Heck).

      To the extent that Rodriguez alleged that defendants retaliated against him for

exercising his First Amendment rights, dismissal was proper because Rodriguez

failed to allege facts sufficient to show that his prosecution was pursued without

probable cause. See Hartman v. Moore, 547 U.S. 250, 265-66 (2006) (absence of

probable cause must be pleaded and proven to support action against criminal

investigators for inducing retaliatory prosecution); see also Reichle v. Howards, 132

                                          2                                    12-15676
S. Ct. 2088, 2093 (2012) (“This Court has never recognized a First Amendment right

to be free from a retaliatory arrest that is supported by probable cause.”).

      Rodriguez contends that he was not given the opportunity to object to the

magistrate judge’s findings and recommendations. However, in his opening brief,

Rodriguez has articulated the objections he would have made, and they fail to show

that his action is not Heck-barred.

      We reject Rodriguez’s contention that the district court erred by assigning a

new magistrate judge to the action.

      We do not consider issues or arguments not specifically and distinctly raised

and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2

(9th Cir. 2009) (per curiam).

      Appellee’s motion to strike, set forth in the answering brief, is denied.

      Appellee’s motion for judicial notice, filed on October 5, 2015, is granted.

      Rodriguez’s motions for judicial notice, filed on October 20, 2015, and March

4, 2016, are denied.

      AFFIRMED.




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