Opinion
No. 12-16163 D.C. No. 3:11-cv-02596-EMC
2013-10-04
FRED KNOX, Plaintiff - Appellant, v. PATRICK R. DONAHOE, Postmaster General, Defendant - Appellee.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Before: RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Fred Knox appeals pro se from the district court's judgment dismissing his employment action alleging discrimination, harassment, and retaliation in violation of federal anti-discrimination laws. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion a dismissal for failure to comply with a pre-filing review order, In re Fillbach, 223 F.3d 1089, 1090-91 (9th Cir. 2000), and review de novo a dismissal under Fed. R. Civ. P. 12(b)(6), Wood v. City of San Diego, 678 F.3d 1075, 1080 (9th Cir. 2012). We affirm.
The district court did not abuse its discretion by dismissing Knox's action because Knox conceded at a hearing that his complaint encompassed alleged discrimination starting in 1995, which was within the scope of the pre-filing review order, dated December 22, 2003, and he failed to comply with the pre-filing requirements. See In re Fillbach, 223 F.3d at 1090-91.
To the extent that Knox alleged a retaliation claim based on events after 2003, the district court properly dismissed for failure to state a claim under Rule 12(b)(6). See Johnson, 534 F.3d at 1121-22 (identifying circumstances warranting dismissal for failure to state a claim under Rule 12(b)(6)); Ray v. Henderson, 217 F.3d 1234, 1240, 1242-43, 1245 (9th Cir. 2000) (setting forth the elements of prima facie case of retaliation, including "adverse employment action" requirement, and of retaliatory harassment under Title VII); see also Poland v. Chertoff, 494 F.3d 1174, 1179-80 & n.1 (9th Cir. 2007) (discussing the elements of a retaliation claim under the Age Discrimination in Employment Act).
We decline to consider Knox's contentions regarding the validity of the pre- filing review order because we reviewed and affirmed the order in a prior appeal. See Knox v. Potter, 130 F. App'x 918 (9th Cir. 2005).
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) (per curiam).
AFFIRMED.