NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN L. MILLER, 

Plaintiff-Appellant, 

 v. 

S. ACOSTA; E. HENRY; S. LOPEZ, 

individual; ABDUL WAHAB OMEIRA, 

individual, 

Defendants-Appellees.

No. 20-55879

D.C. No. 2:15-cv-02285-GW-KK 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

George H. Wu, District Judge, Presiding

Submitted February 15, 2022**

Before: FERNANDEZ, TASHIMA, and FRIEDLAND, Circuit Judges.

California state prisoner John L. Miller appeals pro se from the district 

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging violations of the 

First and Fourteenth Amendments arising out of Miller’s participation in the 

* 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

FEB 25 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
 2 20-55879 

Religious Meat Alternative (“RMA”) diet program. We have jurisdiction under 

28 U.S.C. § 1291. We review de novo a dismissal under Fed. R. Civ. P. 12(b)(6). 

Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We affirm.

The district court properly determined that defendant Acosta was entitled to 

qualified immunity on Miller’s free exercise claim because Acosta’s conduct in 

refusing to provide Miller with his RMA meals when Miller did not show him a 

Religious Diet Card did not violate clearly established law. See Plumhoff v. 

Rickard, 572 U.S. 765, 778-79 (2014) (explaining that “a defendant cannot be said 

to have violated a clearly established right unless the right’s contours were 

sufficiently definite that any reasonable official in the defendant’s shoes would 

have understood that he was violating it.”).

The district court properly dismissed Miller’s remaining claims because 

Miller failed to allege facts sufficient to state any plausible claim. See Hebbe, 627 

F.3d at 341-42 (holding that although pro se pleadings are to be construed liberally, 

a plaintiff must present factual allegations sufficient to state a plausible claim for 

relief); see also Jones v. Williams, 791 F.3d 1023, 1031-32 (9th Cir. 2015) 

(holding that a free exercise claim in the prison context requires a plausible 

allegation that a government action substantially burdens plaintiff’s practice of his 

religion and is not reasonably related to legitimate penological interests); Rhodes v. 

Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (holding that a First Amendment 
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retaliation claim in the prison context requires a plausible allegation that adverse 

actions were taken because of protected conduct); Lee v. City of Los Angeles, 250 

F.3d 668, 686-87 (9th Cir. 2001) (holding that an equal protection claim requires 

plaintiff to allege plausibly that defendants were motivated by discriminatory 

animus).

The district court did not abuse its discretion by denying Miller’s motions to 

disqualify the magistrate judge and district judge because Miller failed to establish 

extrajudicial bias or prejudice. See United States v. McTiernan, 695 F.3d 882, 

891-92 (9th Cir. 2012) (setting forth standard of review and circumstances 

requiring disqualification). We reject as without merit Miller’s contention that the 

magistrate judge and the district judge conspired to reject improperly Miller’s 

second motion to disqualify the district judge. 

Contrary to Miller’s contention that the district court should have addressed 

his Rule 60(b) motion, Miller filed the motion after his notice of appeal, and Miller 

did not seek a limited remand of the case, so the district court lacked jurisdiction to 

consider the motion. See Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004)

(vacating because the district court lacked jurisdiction over a Rule 60(b) motion 

where the motion was filed after the notice of appeal and the movant did not follow 

the procedure for seeking a remand of the case).

We do not consider matters not specifically and distinctly raised and argued 
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in the opening brief or allegations raised for the first time on appeal. See Padgett 

v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.