B. Benedict Waters v. Hollywood Tow Service, Inc.;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
B. BENEDICT WATERS,
Plaintiff - Appellant,
v.
HOLLYWOOD TOW SERVICE, INC.; et
al.,
Defendants - Appellees.
No. 11-57172
D.C. No. 2:07-cv-07568-CAS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Submitted July 22, 2014**
Before: GOODWIN, CANBY, and CALLAHAN, Circuit Judges.
B. Benedict Waters appeals pro se from the district court’s judgment
dismissing his action alleging violations of his First, Fourth, and Fourteenth
Amendment rights and violations of the Fair Credit Reporting Act (“FCRA”). We
FILED
JUL 31 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for
failure to state a claim under Fed. R. Civ. P. 12(b)(6) and a judgment on the
pleadings under Fed. R. Civ. P. 12(c). Berg v. Popham, 412 F.3d 1122, 1125 (9th
Cir. 2005). We affirm.
The district court properly dismissed Waters’s First Amendment retaliation
claim because Waters failed to allege facts showing that defendants acted with the
intent to chill Waters’s protected conduct. See Skoog v. County of Clackamas, 469
F.3d 1221, 1231-32 (9th Cir. 2006) (in a First Amendment retaliation claim,
plaintiff must demonstrate that defendant’s “desire to cause the chilling effect was
a but-for cause of the defendant’s action”).
The district court properly dismissed Waters’s Fourth Amendment claims
because Waters failed to allege facts showing either that his payment to the City of
Los Angeles for a hearing that he was later denied, or that Hollywood Tow’s
retention of his vehicle and keys, constituted seizures for purposes of the Fourth
Amendment, and because Waters failed to allege facts showing that the
impoundment of his vehicle was unreasonable. See United States v. Karo, 468
U.S. 705, 712 (1984) (“A seizure of property occurs when there is some
meaningful interference with an individual’s possessory interests in that
property.”(citation omitted)); South Dakota v. Opperman, 428 U.S. 364, 369
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(1976) ( “The authority of police to seize and remove from the streets vehicles
impeding traffic or threatening public safety and convenience is beyond
challenge.”).
The district court properly dismissed Waters’s Fourteenth Amendment
claims alleging deprivations of his property because Waters had a post-deprivation
remedy under California law. See Barnett v. Centoni, 31 F.3d 813, 816-17 (9th
Cir. 1994) (per curiam) (“California [l]aw provides an adequate post-deprivation
remedy for any property deprivations.”). The district court also properly dismissed
Waters’s Fourteenth Amendment claims against the Office of the City Attorney
because Waters failed to allege facts showing that the purported failure to produce
the requested photograph deprived him of a constitutionally protected interest. See
Nev. Dep’t of Corr. v. Greene, 648 F.3d 1014, 1019 (9th Cir. 2011) (due process
claim requires a constitutionally protected liberty or property interest).
The district court properly dismissed under Federal Rule of Civil Procedure
12(c) Waters’s FCRA claims because Waters failed to make a prima facie showing
of inaccurate credit reporting. See Carvalho v. Equifax Info. Servs., LLC, 629 F.3d
876, 890-91 (9th Cir. 2010) (explaining that an FCRA claim requires a showing of
patently inaccurate or materially misleading credit reporting).
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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) (per curiam).
All pending motions are denied.
AFFIRMED.
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