NOT FOR PUBLICATION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

- GMS

DMF

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) (dism issal 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, CLER K U.S. COURT OF APPEAL S2 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.
Th e district court properly dismissed as frivolous O’Brien’s c onstitutional

c laims relating to the prison’s alleged broadcasting of psychotic sounds b ecause the se 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 eithe r in law or i n fact; “[the] term ‘frivolous’

. . . embraces not only the inarguable legal conclusion, but also the fanciful factual allegation”).
The district cour t properly dismissed O’Brien’s retaliation and deliberate
indifference claims because O’Brie n 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 plausibl e 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 le ave to amend may be denied because amendment would be3 18

- 16962

futile)

. The district court did not abuse its discretion in denying O’Brien’s motions to supple ment 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 ( “ A ll complaints and applications to proceed in forma pauperis by incarcerated persons
must be

. . . on forms approved by the Court and in accordance with the
instru ctions provided with the forms

. . . . ” ).
The di strict court did not abuse its discretion in denying O’Brien’s motion to take depositions as moot

. Se e 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 disti nctly raised and ar gued 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 moti ons are denied.
AFFIRMED.