NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TONY LEE HILL, 

Plaintiff-Appellant, 

 v. 

DANIEL MORENO, individual and official 

capacity; et al., 

Defendants-Appellees.

No. 16-56145 

D.C. No. 2:13-cv-02706-SVW-KES 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Submitted June 26, 2017**

Before: PAEZ, BEA, and MURGUIA, Circuit Judges.

Tony Lee Hill appeals pro se from the district court’s summary judgment in 

his 42 U.S.C. § 1983 action alleging excessive force during his arrest. We have 

jurisdiction under 28 U.S.C. § 1291. We review de novo, Toguchi v. Chung, 391

F.3d 1051, 1056 (9th Cir. 2004), and we affirm.

 

* 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).

FILED

JUN 30 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 16-56145 

The district court properly granted summary judgment on Hill’s excessive 

force claim because Hill failed to raise a genuine dispute of material fact as to 

whether defendant Moreno used excessive force or whether the remaining 

defendants participated in Hill’s arrest. See Graham v. Connor, 490 U.S. 386, 396 

(1989) (setting forth standard for claim of excessive force during arrest); Jones v. 

Williams, 297 F.3d 930, 934 (9th Cir. 2002) (“In order for a person acting under 

color of state law to be liable under section 1983 there must be a showing of 

personal participation in the alleged rights deprivation . . . .”).

The district court properly dismissed Hill’s claims concerning a conspiracy 

to deny him a fair criminal trial because success on those claims would necessarily 

imply the invalidity of his conviction. See Heck v. Humphrey, 512 U.S. 477, 486-

87 (1994) (barring § 1983 claim which would necessarily imply the invalidity of a 

conviction, unless the plaintiff can show that the conviction has been invalidated).

The district court did not abuse its discretion by denying Hill leave to file a 

Third Amended Complaint because further amendment would be futile. See 

Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) 

(setting forth standard of review and explaining that dismissal without leave to 

amend is proper when amendment would be futile); Chodos v. West Publ’g Co., 

292 F.3d 992, 1003 (9th Cir. 2002) (“[W]hen a district court has already granted a 

plaintiff leave to amend, its discretion in deciding subsequent motions to amend is 
3 16-56145 

particularly broad.” (citation and internal quotation marks omitted)).

The district court did not abuse its discretion by denying Hill’s motion for 

appointment of counsel because Hill failed to demonstrate exceptional 

circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting 

forth standard of review and exceptional circumstances requirement for 

appointment of counsel).

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).

Hill’s requests for release from prison, set forth in his briefs, are denied.

Hill’s motion for leave to file a second supplement to the opening brief 

(Docket Entry No. 15) is granted. The Clerk shall file the second supplement to 

the opening brief (Docket Entry No. 16).

AFFIRMED.