NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES G. KINNEY, 

Plaintiff-Appellant, 

 v. 

THREE ARCH BAY COMMUNITY 

SERVICES DISTRICT; et al., 

Defendants-Appellees.

No. 18-56550 

D.C. No. 8:17-cv-01693-RGK-JC 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

R. Gary Klausner, District Judge, Presiding

Submitted November 9, 2020**

Before: THOMAS, Chief Judge, TASHIMA and W. FLETCHER, Circuit Judges.

Charles G. Kinney appeals pro se from the district court’s judgment 

dismissing his action alleging violations of the Clean Water Act (“CWA”), 33 

U.S.C. § 1365. We have jurisdiction under 28 U.S.C. § 1291. We review de novo

* 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). Kinney’s request for oral 

argument, set forth in the opening brief, is denied. 

FILED

NOV 16 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 18-56550 

a dismissal for lack of subject matter jurisdiction under the CWA. Wash. Trout v. 

McCain Foods, Inc., 45 F.3d 1351, 1353 (9th Cir. 1995) (dismissal for lack of 

subject matter jurisdiction under the CWA). We may affirm on any basis 

supported by the record. Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 

2008). We affirm.

The district court properly dismissed for lack of subject matter jurisdiction 

Kinney’s claims in the first amended complaint against defendants Three Arch Bay 

Community Services District, Three Arch Bay Association, City of Laguna Beach, 

and California Department of Transportation. Dismissal of Kinney’s claims in the 

complaint against defendants Viviani, John Chaldu, and Lynn Chaldu was also 

proper because Kinney failed to provide defendants with adequate notice of the 

alleged CWA violations. See 40 C.F.R. § 135.3 (notice under CWA must provide 

sufficient information to permit recipient to identify violation); Wash. Trout, 45 

F.3d at 1354-55 (affirming dismissal of CWA action for lack of subject matter 

jurisdiction where notice was “insufficient as required by the regulations 

promulgated under the CWA”). 

The district court did not abuse its discretion by dismissing the first amended 

complaint without leave to amend because amendment would have been 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 
3 18-56550 

to amend is proper when amendment would be futile).

The district court did not abuse its discretion by declaring Kinney a 

vexatious litigant and entering a pre-filing review order against him because all of 

the requirements for entering a pre-filing review order were met. See RinggoldLockhart v. County of Los Angeles, 761 F.3d 1057, 1062 (9th Cir. 2014) (setting 

forth requirements for pre-filing review orders).

The district court did not abuse its discretion by transferring the case to 

Judge Klausner in the Western Division of the U.S. District Court for the Central 

District of California. See 28 U.S.C. § 1404(b) (intradistrict transfer between 

divisions is within the discretion of the district court); Jones v. GNC Franchising, 

Inc., 211 F.3d 495, 498 (9th Cir. 2000) (standard of review).

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.