Gregory Charles Krug v. Thomas Pellicane;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY CHARLES KRUG,
Plaintiff-Appellant,
v.
THOMAS PELLICANE; et al.,
Defendants-Appellees.
No. 15-55178
D.C. No. 2:12-cv-10696-PA-CW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted November 15, 2017**
Before: CANBY, TROTT, and GRABER, Circuit Judges.
Gregory Charles Krug appeals pro se from the district court’s judgment
dismissing his action brought under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging retaliation in violation
of the First Amendment. We have jurisdiction under 28 U.S.C. § 1291. 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
NOV 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 15-55178
review de novo a dismissal under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d
443, 447 (9th Cir. 2000). We affirm.
Assuming without deciding that a Bivens remedy may be inferred for a First
Amendment retaliation claim, see Ziglar v. Abbasi, 137 S. Ct. 1843, 1857-58
(2017), the district court properly dismissed Krug’s retaliation claim because Krug
failed to allege facts sufficient to establish that chilling or deterring Krug’s
protected speech was a substantial or motivating factor in defendants’ conduct.
See Mendocino Envtl. Ctr.v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir.
1999) (requirements for First Amendment retaliation claim); see also Ford v. City
of Yakima, 706 F.3d 1188, 1193 (9th Cir. 2013) (plaintiff must establish that “the
officers’ conduct would chill a person of ordinary firmness from future First
Amendment activity” and that “the officers’ desire to chill his speech was a but-for
cause of their allegedly unlawful conduct”).
The district court did not abuse its discretion by denying as premature
Krug’s request for an evidentiary hearing due to the pendency of defendants’
motion to dismiss.
We reject as unsupported by the record Krug’s contention regarding judicial
bias.
AFFIRMED.

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