Summary
dismissing Bivens action for failure to allege sufficient facts to prove First Amendment retaliation and not reaching new context analysis
Summary of this case from Lanuza v. LoveOpinion
No. 15-55178
11-20-2017
GREGORY CHARLES KRUG, Plaintiff-Appellant, v. THOMAS PELLICANE; et al., Defendants-Appellees.
NOT FOR PUBLICATION
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 Before: CANBY, TROTT, and GRABER, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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 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.