NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TERRY LEE O’BRIEN, 

Plaintiff-Appellant, 

 v. 

CARLA HACKER-AGNEW, Warden, 

Warden; et al., 

Defendants-Appellees.

No. 18-16962 

D.C. No. 2:17-cv-00166-GMSDMF 

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

G. Murray Snow, Chief Judge, Presiding

Submitted January 15, 2019**

Before: TROTT, TALLMAN, and CALLAHAN, Circuit Judges. 

Arizona state prisoner Terry Lee O’Brien appeals pro se from the district 

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging various claims. 

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

Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012) (dismissal under 28 U.S.C. 

 

* 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

JAN 24 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 18-16962 

§ 1915A); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (dismissal under

28 U.S.C. § 1915(e)(2)(B)(ii)). We affirm. 

The district court properly dismissed as frivolous O’Brien’s constitutional 

claims relating to the prison’s alleged broadcasting of psychotic sounds because 

these claims lacked any arguable basis in law or fact. See Neitzke v. Williams, 490 

U.S. 319, 325 (1989) (under § 1915(e)(2), a ‘frivolous’ claim lacks an arguable 

basis either in law or in fact; “[the] term ‘frivolous’ . . . embraces not only the 

inarguable legal conclusion, but also the fanciful factual allegation”).

The district court properly dismissed O’Brien’s retaliation and deliberate 

indifference claims because O’Brien failed to allege facts sufficient to state a 

plausible claim. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) 

(although pro se pleadings are to be construed liberally, a plaintiff must present 

factual allegations sufficient to state a plausible claim for relief); Rhodes v. 

Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (elements of a retaliation claim in 

the prison context); Toguchi v. Chung, 391 F.3d 1051, 1057-58 (9th Cir. 2004) 

(elements of a deliberate indifference claim).

The district court did not abuse its discretion in denying O’Brien further 

leave to amend because amendment would have been futile. See Gordon v. City of 

Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010) (setting forth standard of review and 

explaining that leave to amend may be denied because amendment would be 
3 18-16962 

futile).

The district court did not abuse its discretion in denying O’Brien’s motions 

to supplement the third amended complaint. See Bias v. Moynihan, 508 F.3d 1212, 

1223 (9th Cir. 2007) (standard of review); see also D. Ariz. Loc. R. 3.4 (“All 

complaints and applications to proceed in forma pauperis by incarcerated persons 

must be . . . on forms approved by the Court and in accordance with the 

instructions provided with the forms . . . .”). 

The district court did not abuse its discretion in denying O’Brien’s motion to 

take depositions as moot. See Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1093 

(9th Cir. 2003) (standard of review). 

We reject as meritless O’Brien’s contentions that the district court violated 

his due process rights and was deliberately indifferent to his safety. 

We do not consider arguments raised for the first time on appeal, or matters 

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). We do not consider facts not 

presented to the district court. See United States v. Elias, 921 F.2d 870, 874 (9th 

Cir. 1990). 

All pending motions are denied. 

AFFIRMED.