                                                                            FILED
                           NOT FOR PUBLICATION                               DEC 22 2016

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



                            FOR THE NINTH CIRCUIT


JOSEPH PATRICK CUVIELLO, I,                      No. 14-16793

              Plaintiff-Appellant,               D.C. No. 5:13-cv-04951-BLF

 v.
                                                 MEMORANDUM*
FELD ENTERTAINMENT, INC., DBA
Ringling Bros and Barnum & Bailey
Circus; et al.,

              Defendants-Appellees.


                   Appeal from the United States District Court
                       for the Northern District of California
                  Beth Labson Freeman, District Judge, Presiding

                          Submitted December 14, 2016**

Before:      WALLACE, LEAVY, and FISHER, Circuit Judges.

      Joseph Patrick Cuviello, I, appeals pro se from the district court’s order

dismissing his 42 U.S.C. § 1983 action alleging a First Amendment violation and

malicious prosecution stemming from defendants’ action brought against Cuviello

      *
             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).
under the Workplace Violence Safety Act, Cal. Civ. Proc. Code § 527.8. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s

dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6) and under

California’s anti-Strategic Lawsuits Against Public Participation (“anti-SLAPP”)

statute. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102 (9th Cir. 2003). We

affirm.

      The district court properly granted defendants’ special motion to strike

Cuviello’s malicious prosecution claim under California’s anti-SLAPP statute

because Cuviello failed to show a probability of prevailing on the merits as the

action was precluded by law. See Makaeff v. Trump Univ., LLC, 715 F.3d 254, 261

(9th Cir. 2013) (once a defendant makes a prima facie showing that the plaintiff’s

suit arises from defendant’s protected activity, the burden then shifts to the plaintiff

to establish a reasonable probability that he will prevail on his claim); Robinzine v.

Vicory, 50 Cal. Rptr. 3d 65, 66 (Ct. App. 2006) (“We hold as a matter of law that a

malicious prosecution cause of action does not arise from an unsuccessful petition

filed under section 527.8.”); see also Lewis v. Tel. Employees Credit Union, 87

F.3d 1537, 1545 (9th Cir. 1996) (when there is no state supreme court opinion

addressing a question of state law, a federal court is obligated to follow the

decisions of the state’s intermediate appellate courts absent convincing evidence


                                           2                                      14-16793
that the state supreme court would decide the issue differently).

       The district court properly dismissed Cuviello’s First Amendment claim

because Cuviello failed to allege facts sufficient to establish that defendants were

state actors for purposes of § 1983. See Franklin v. Fox, 312 F.3d 423, 444-45 (9th

Cir. 2002) (tests for determining whether a private individual’s actions amount to

state action).

       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.




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