DAVID FENNELL V. ROB BONTA, No. 20-16487 (9th Cir. 2021)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED SEP 20 2021 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT DAVID DOUGLAS FENNELL, Plaintiff-Appellant, v. No. U.S. COURT OF APPEALS 20-16487 D.C. No. 3:20-cv-01522-EMC MEMORANDUM* ROB BONTA, in his official capacity as California Attorney General, Defendant-Appellee. Appeal from the United States District Court for the Northern District of California Edward M. Chen, District Judge, Presiding Submitted September 14, 2021** Before: PAEZ, NGUYEN, and OWENS, Circuit Judges. David Douglas Fennell appeals pro se from the district court’s judgment dismissing his action challenging the constitutionality of California’s anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16. We have jurisdiction 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). § 1291. We review de novo a dismissal under 28 U.S.C. § 1915(e)(2)(B). Watson v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). We affirm. The district court properly concluded that Fennell failed to state a claim that California’s anti-SLAPP statute is unconstitutional because it was enacted to retaliate against him. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (a plaintiff must present factual allegations sufficient to state a plausible claim for relief). Fennell also failed to state a claim that the statute’s provision for the striking of certain claims arising from speech concerning “an issue of public interest,” Cal. Civ. Proc. Code § 425.16(e)(3), violates the First Amendment by singling out whistleblowers for different treatment. See IMDb.com Inc. v. Becerra, 962 F.3d 1111, 1120 (9th Cir. 2020) (a law does not offend the First Amendment by having only an incidental effect on speech). We do not consider matters not specifically 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. 2

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