NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CINDY SUE DOWNING, 

Plaintiff-Appellant, 

 v. 

PACIFIC GAS & ELECTRIC COMPANY, 

a California corporation; DOES, 1 through 

10, inclusive, 

Defendants-Appellees.

No. 18-56500 

D.C. No. 5:17-cv-01047-DMG-KK 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Dolly M. Gee, District Judge, Presiding

Submitted September 8, 2020**

Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.

Cindy Sue Downing appeals pro se from the district court’s summary 

judgment in her 42 U.S.C. § 1983 action alleging Fourteenth Amendment claims 

stemming from alleged exposure to elevated levels of arsenic and uranium. We 

* 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

SEP 14 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 18-56500 

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

Pac. R.R. Co., 935 F.3d 852, 854 (9th Cir. 2019). We affirm.

The district court properly granted summary judgment because plaintiff 

failed to raise a genuine dispute of material fact as to whether elevated levels of 

arsenic or uranium had the capacity to cause her alleged injuries, and whether 

plaintiff’s alleged injuries resulted from her exposure to elevated levels of arsenic 

or uranium. See Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 

2008) (“In a § 1983 action, the plaintiff must [] demonstrate that the defendant’s 

conduct was the actionable cause of the claimed injury.”); In re Hanford Nuclear 

Rsrv. Litig., 292 F.3d 1124, 1133-34 (9th Cir. 2002) (in a toxic tort case, plaintiff 

must demonstrate general causation, “whether the substance at issue had the 

capacity to cause the harm alleged,” and specific causation, “whether a particular 

individual suffers from a particular ailment as a result of exposure to a substance”).

The district court did not abuse its discretion by sustaining defendant’s 

objections to certain evidence submitted by plaintiff in opposition to summary 

judgment because such evidence constituted inadmissible lay opinion on matters 

requiring scientific, technical, and specialized knowledge and neither plaintiff nor 

the other declarants were qualified as experts on such matters under Federal Rule 

of Evidence 702. See Fed. R. Evid. 701, 702; Kumho Tire Co., Ltd. v. Carmichael, 

526 U.S. 137, 141 (1999) (trial court’s gatekeeping obligation applies to all types 
3 18-56500 

of expert testimony); Nationwide Transp. Fin. v. Cass Info. Sys., Inc., 523 F.3d 

1051, 1058 (9th Cir. 2008) (district court’s decision on admissibility of lay opinion 

testimony “will be overturned only if it constitutes a clear abuse of discretion” 

(citation and quotation marks omitted)). 

The district court did not abuse its discretion by ruling that plaintiff failed to 

submit expert testimony on causation because plaintiff failed to disclose any expert 

witnesses in her Federal Rule of Civil Procedure 26(a)(2) expert disclosures. See

Fed. R. Civ. P. 26(a)(2); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987),

overruled on other grounds by Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 

2012) (en banc) (pro se litigants are held to same procedural rules as other 

litigants). Contrary to plaintiff’s contentions, plaintiff did not request an extension 

of time for expert discovery and the district court did not exclude any of her 

proffered expert testimony on the basis of Federal Rule of Civil Procedure 37(c). 

We reject as meritless and unsupported by the record plaintiff’s contentions 

that the district court violated her due process rights, was biased, or failed to 

conduct a de novo review of the magistrate judge’s Report & Recommendation. 

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).
4 18-56500 

All pending motions and requests are denied.

AFFIRMED.