NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 23 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRADLY M. CUNNINGHAM, No. 18-35442

Plaintiff-Appellant, D.C. No. 3:17-cv-01686-SI

v.

MEMORANDUM*

COLUMBIA PICTURES INDUSTRIES,

INC.; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Submitted April 17, 2019**

Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.

Bradly M. Cunningham appeals pro se from the district court’s judgment

dismissing his action alleging federal and state law claims. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo the district court’s grant of an anti-

SLAPP motion to strike. Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 1102

* 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). (9th Cir. 2003). We may affirm on any basis supported by the record, Thompson v.

Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008), and we affirm.

The district court properly granted defendants’ special motion to strike as to

Cunningham’s defamation claims because the claims arose out of expressive

activity protected by Oregon’s anti-SLAPP statute and Cunningham failed to

establish a probability of prevailing on the merits. See Schwern v. Plunkett, 845

F.3d 1241, 1245 (9th Cir. 2017) (setting forth applicable two-step analysis); see

also Or. Rev. Stat. § 12.120(2) (one-year limitations period for defamation);

Magenis v. Fisher Broad., Inc., 798 P.2d 1106, 1109 (Or. Ct. App. 1990) (when a

false light claim alleges facts that also constitute a defamation claim, the false light

claim must be filed within the period for bringing a defamation claim); Workman

v. Rajneesh Found. Int’l, 733 P.2d 908, 910-11 (Or. Ct. App. 1987) (discovery rule

does not apply to defamation actions arising out of public utterances).

Dismissal of Cunningham’s federal claims was proper because Cunningham

failed to allege facts sufficient to state a plausible claim. See Hebbe v. Pliler, 627

F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are construed liberally,

a plaintiff must present factual allegations sufficient to state a plausible claim for

relief); George v. Pac.–CSC Work Furlough, 91 F.3d 1227, 1229 (9th Cir. 1996)

(plaintiff alleging infringement of constitutional rights by private parties must

show that the infringement constitutes state action).

2 18-35442 The district court did not abuse its discretion by denying Cunningham’s

motion to compel discovery because Cunningham failed to demonstrate actual and

substantial prejudice resulting from the denial of discovery. See Childress v.

Darby Lumber, Inc., 357 F.3d 1000, 1009 (9th Cir. 2004) (standard of review);

Sablan v. Dep’t of Fin., 856 F.2d 1317, 1321 (9th Cir. 1988) (district court’s

“decision to deny discovery will not be disturbed except upon the clearest showing

that denial of discovery results in actual and substantial prejudice to the

complaining litigant” (citation and internal quotation marks omitted)).

The district court did not abuse its discretion by denying leave to amend

because amendment would have been futile. See Chappel v. Lab. Corp. of Am.,

232 F.3d 719, 725-26 (9th Cir. 2000) (setting forth standard of review and

explaining that “[a] district court acts within its discretion to deny leave to amend

when amendment would be futile”).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

All pending motions and requests are denied.

AFFIRMED.

3 18-35442