United States v. 2020-11-16 | 18-56550 | CHARLES KINNEY V. THREE ARCH BAY CSD | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES G. KINNEY,

Plaintiff-Appellant,

v.

THREE ARCH BAY COMMUNITY
SERVICES DISTRICT; et al.,

Defendants-Appellees.

No. 18-56550

D.C. No. 8:17-cv-01693-RGK-JC

MEMORANDUM
*

Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding

Submitted November 9, 2020
**

Before: THOMAS, Chief Judge, TASHIMA and W. FLETCHER, Circuit Judges.

Charles G. Kinney appeals pro se from the district court’s judgment
dismissing his action alleging violations of the Clean Water Act (“CWA”), 33
U.S.C. § 1365. We have jurisdiction under 28 U.S.C. § 1291. We review de novo

*
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). Kinney’s request for oral
argument, set forth in the opening brief, is denied.
FILED

NOV 16 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 18-56550
a dismissal for lack of subject matter jurisdiction under the CWA. Wash. Trout v.
McCain Foods, Inc., 45 F.3d 1351, 1353 (9th Cir. 1995) (dismissal for lack of
subject matter jurisdiction under the CWA). We may affirm on any basis
supported by the record. Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir.
2008). We affirm.
The district court properly dismissed for lack of subject matter jurisdiction
Kinney’s claims in the first amended complaint against defendants Three Arch Bay
Community Services District, Three Arch Bay Association, City of Laguna Beach,
and California Department of Transportation. Dismissal of Kinney’s claims in the
complaint against defendants Viviani, John Chaldu, and Lynn Chaldu was also
proper because Kinney failed to provide defendants with adequate notice of the
alleged CWA violations. See 40 C.F.R. § 135.3 (notice under CWA must provide
sufficient information to permit recipient to identify violation); Wash. Trout, 45
F.3d at 1354-55 (affirming dismissal of CWA action for lack of subject matter
jurisdiction where notice was “insufficient as required by the regulations
promulgated under the CWA”).
The district court did not abuse its discretion by dismissing the first amended
complaint without leave to amend because amendment would have been futile.
See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir.
2011) (setting forth standard of review and explaining that dismissal without leave

3 18-56550
to amend is proper when amendment would be futile).
The district court did not abuse its discretion by declaring Kinney a
vexatious litigant and entering a pre-filing review order against him because all of
the requirements for entering a pre-filing review order were met. See Ringgold-
Lockhart v. County of Los Angeles, 761 F.3d 1057, 1062 (9th Cir. 2014) (setting
forth requirements for pre-filing review orders).
The district court did not abuse its discretion by transferring the case to
Judge Klausner in the Western Division of the U.S. District Court for the Central
District of California. See 28 U.S.C. § 1404(b) (intradistrict transfer between
divisions is within the discretion of the district court); Jones v. GNC Franchising,
Inc., 211 F.3d 495, 498 (9th Cir. 2000) (standard of review).
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).
AFFIRMED.