NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 11 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOE STEPHENS, No. 22-35707

Plaintiff-Appellant, D.C. No. 1:21-cv-00018-RRB

v.

MEMORANDUM*

STATE OF ALASKA, Alaska Division of Elections,

Defendant-Appellee.

Appeal from the United States District Court for the District of Alaska Ralph R. Beistline, District Judge, Presiding

Submitted June 26, 2023**

Before: CANBY, S.R. THOMAS, and CHRISTEN, Circuit Judges.

Joe Stephens appeals pro se from the district court’s judgment dismissing his

42 U.S.C. § 1983 action alleging violations of the First and Fourteenth

Amendments in connection with Alaska’s refusal to include his middle name as his

nickname on the ballot. We have jurisdiction under 28 U.S.C. § 1291. We review

* 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). de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6). Lacey v.

Maricopa County, 693 F.3d 896, 911 (9th Cir. 2012) (en banc). We affirm.

The district court properly dismissed Stephens’s First Amendment claim

because Stephens failed to allege facts sufficient to show that the denial of his

request to have his middle name appear as a nickname on the ballot was not

justified by the important state interest of facilitating fairness, simplicity, and

clarity in the voting procedure. See Rubin v. City of Santa Monica, 308 F.3d 1008,

1017-19 (9th Cir. 2002) (applying balancing test and concluding that limitation on

a candidate’s status designation on a ballot was constitutional because it did not

impose a severe burden on candidate’s free speech right and was reasonably

related to the legitimate goal of achieving a straightforward, neutral, non-confusing

ballot); see also Lindsay v. Bowen, 750 F.3d 1061, 1063-64 (9th Cir. 2014)

(explaining that there is no “right to use the ballot itself to send a particularized

message” (citations and internal quotation marks omitted)).

The district court properly dismissed Stephen’s equal protection claim

because Stephens failed to allege facts sufficient to show that he was subject to

disparate treatment or that the refusal to permit his middle name to appear as a

nickname on the ballot was not rationally related to a legitimate governmental

purpose. See United States v. Padilla-Diaz, 862 F.3d 856, 862 (9th Cir. 2017)

(explaining that under rational basis review, the challenger of a classification bears

2 22-35707 the burden of “negativing every conceivable basis which might support it” (citation

omitted and alteration adopted)); Van Susteren v. Jones, 331 F.3d 1024, 1027 (9th

Cir. 2003) (to prevail on an equal protection claim, a plaintiff must show that he

has been treated differently from others similarly situated); Rubin, 308 F.3d at

1019 (applying rational basis review because challenged election restriction did not

unconstitutionally burden the right to free speech). We reject as without merit

Stephens’s contention that the district court should not have treated his equal

protection claim as a class-of-one claim because he is a member of a large group of

individuals who share his political views.

The district court did not abuse its discretion in denying as premature

Stephens’s motion to compel. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir.

2002) (setting forth standard of review and describing trial court’s broad discretion

to deny discovery).

We do not consider 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.

3 22-35707