David Douglas Fennell v. Rob Bonta, in his official capacity as California Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID DOUGLAS FENNELL,
Plaintiff-Appellant,
v.
ROB BONTA, in his official capacity as
California Attorney General,
Defendant-Appellee.
No. 20-16487
D.C. No. 3:20-cv-01522-EMC
MEMORANDUM*
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).
FILED
SEP 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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§ 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.

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