NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 14 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDREW ANDERSEN, No. 19-15969

Plaintiff-Appellant, D.C. No. 1:16-cv-00236-DAD-SAB

v.

MEMORANDUM*

MARISELA MONTES, Commissioner of California Board of Parole Hearings; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding

Submitted May 6, 2020**

Before: BERZON, N.R. SMITH, and MILLER, Circuit Judges.

California state prisoner Andrew Andersen appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging a First

Amendment claim challenging the Board of Parole Hearings (“BPH”) regulatory

scheme for early parole determinations for prisoners with life sentences. We have

* 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). jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to

state a claim under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th

Cir. 2000). We affirm.

The district court properly dismissed Andersen’s First Amendment facial

challenge to the BPH regulations because Andersen failed to allege facts sufficient

to show that the BPH regulations, Cal. Code. Regs. tit. 15, § 2281, were overly

broad and therefore invalid on their face. See United States v. Stevens, 559 U.S.

460, 472 (2010) (explaining that to succeed on a facial attack under the First

Amendment, a plaintiff must establish that “a substantial number of [the statute’s]

applications are unconstitutional, judged in relation to the statute’s plainly

legitimate sweep” (citation and internal citations omitted)); City of Houston v. Hill,

482 U.S. 451, 458 (1987) (“Only a statute that is substantially overbroad may be

invalidated on its face.”).

To the extent that Andersen challenges the district court’s dismissal of his

“as-applied” challenge to the BPH regulations, Anderson’s as-applied challenge

was the subject of a prior appeal, see Andersen v. Montes, Case No. 17-16610. In

17-16610, this court concluded that the district court properly dismissed the claim.

Andersen v. Montes, 708 Fed.Appx. 429 (9th Cir. 2017).

The district court did not abuse its discretion by denying Andersen further

leave to amend because amendment would have been futile. See Cervantes v.

2 19-15969 Countrywide Home Loans, 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth

standard of review and explaining that a district court may deny leave to amend if

amendment would be futile); see also Chodos v. West Publ’g Co., 292 F.3d 992,

1003 (9th Cir. 2002) (a district court’s discretion to deny leave to amend is

particularly broad when it has already granted leave to amend).

We do not consider arguments and allegations raised for the first time on

appeal, or arguments not specifically or distinctly raised in the opening brief. See

Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

3 19-15969