NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 11 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

HERBERT NETHERY; YVONNE                         No.    18-56377
KIRKPATRICK,
                                                D.C. No. 5:16-cv-00653-DMG-KK
                Plaintiffs-Appellants,

 v.                                             MEMORANDUM*

PACIFIC GAS & ELECTRIC COMPANY,
a California corporation; DOES, 1 through
10, inclusive,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                     Dolly M. Gee, District Judge, Presiding

                          Submitted September 8, 2020**

Before:      TASHIMA, SILVERMAN, and OWENS, Circuit Judges.

      Herbert Nethery and Yvonne Kirkpatrick appeal pro se from the district

court’s summary judgment in their 42 U.S.C. § 1983 action alleging Fourteenth

Amendment claims stemming from alleged exposure to elevated levels of arsenic


      *
             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).
and uranium. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

Stephens v. Union Pac. R.R. Co., 

, 854 (9th Cir. 2019). We affirm.

      The district court properly granted summary judgment because plaintiffs

failed to raise a genuine dispute of material fact as to whether elevated levels of

arsenic or uranium had the capacity to cause their alleged injuries, and whether

plaintiffs’ alleged injuries resulted from their exposure to elevated levels of arsenic

or uranium. See Harper v. City of Los Angeles, 

, 1026 (9th Cir.

2008) (“In a § 1983 action, the plaintiff must [] demonstrate that the defendant’s

conduct was the actionable cause of the claimed injury.”); In re Hanford Nuclear

Rsrv. Litig., 

, 1133-34 (9th Cir. 2002) (in a toxic tort case, plaintiff

must demonstrate general causation, “whether the substance at issue had the

capacity to cause the harm alleged,” and specific causation, “whether a particular

individual suffers from a particular ailment as a result of exposure to a substance”).

      The district court did not abuse its discretion by sustaining defendant’s

objections to certain evidence submitted by plaintiffs in opposition to summary

judgment because such evidence constituted inadmissible lay opinion on matters

requiring scientific, technical, and specialized knowledge and neither plaintiffs nor

the other declarants were qualified as experts on such matters under Federal Rule

of Evidence 702. See Fed. R. Evid. 701, 702; Kumho Tire Co., Ltd. v. Carmichael,

, 141 (1999) (trial court’s gatekeeping obligation applies to all types


                                           2                                    18-56377
of expert testimony); Nationwide Transp. Fin. v. Cass Info. Sys., Inc., 

, 1058 (9th Cir. 2008) (district court’s decision on admissibility of lay opinion

testimony “will be overturned only if it constitutes a clear abuse of discretion”

(citation and quotation marks omitted)).

         The district court did not abuse its discretion by ruling that plaintiffs failed

to submit expert testimony on causation because they failed to disclose any expert

witnesses in their Federal Rule of Civil Procedure 26(a)(2) expert disclosures. See

Fed. R. Civ. P. 26(a)(2); King v. Atiyeh, 

, 567 (9th Cir. 1987),

overruled on other grounds by Lacey v. Maricopa County, 

(9th Cir.

2012) (en banc) (pro se litigants are held to same procedural rules as other

litigants). Contrary to plaintiffs’ contentions, plaintiffs did not request an

extension of time for expert discovery and the district court did not exclude any of

their proffered expert testimony on the basis of Federal Rule of Civil Procedure

37(c).

         We reject as meritless and unsupported by the record plaintiffs’ contentions

that the district court violated their due process rights, was biased, or failed to

conduct a de novo review of the magistrate judge’s Report & Recommendation.

         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, 

, 985 n.2 (9th Cir. 2009).


                                              3                                     18-56377
All pending motions and requests are denied.

AFFIRMED.




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