Raymond Myers v. R. Arias ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 28 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAYMOND DEAN MYERS, No. 19-56366
Plaintiff-Appellant, D.C. No. 3:18-cv-02239-DMS-
BLM
v.
R. ARIAS, Captain of D-Yard, MEMORANDUM*
Defendant-Appellee,
and
DANIEL PARAMO, Warden; et al.,
Defendants.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted April 20, 2021**
Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges.
*
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).
California state prisoner Raymond Dean Myers appeals pro se from the
district court’s summary judgment and dismissal order in his 42 U.S.C. § 1983action alleging deliberate indifference to his serious medical needs and other
claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Albino
v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc) (summary judgment for
failure to exhaust); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012)
(dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)); Resnick v. Hayes, 213 F.3d 443,
447 (9th Cir. 2000) (dismissal under 28 U.S.C. § 1915A). We affirm.
The district court properly granted summary judgment for defendant Arias
because Myers did not exhaust his administrative remedies, and failed to raise a
genuine dispute of material fact as to whether administrative remedies were
effectively unavailable to him. See Ross v. Blake, 136 S. Ct. 1850, 1858-60 (2016)
(explaining that an inmate must exhaust such administrative remedies as are
available before bringing suit, and describing limited circumstances in which
administrative remedies are unavailable); Albino, 747 F.3d at 1172-73 (explaining
burden shifting analysis in evaluating exhaustion at summary judgment); Brown v.
Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005) (confirming the requirement under the
Prison Litigation Reform Act that a prisoner must exhaust administrative remedies
as long as some relief is available, even if the desired relief is not available).
The district court properly dismissed Myers’s claims against defendants
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Paramo and Miller because Myers failed to allege facts sufficient to show that
these defendants were directly involved in the challenged housing assignments or
dietary decisions. See Maxwell v. County of San Diego, 708 F.3d 1075, 1097 (9th
Cir. 2013) (“There is no respondeat superior liability under § 1983. Rather, a
government official may be held liable only for the official’s own conduct.”).
The district court did not abuse its discretion in severing Myers’s deliberate
indifference claim against defendant Basto and dismissing the claim without
prejudice because Myers failed to demonstrate that this claim arose “out of the
same transaction, occurrence, or series of transactions or occurrences,” and
involved a “question of law or fact common to all defendants.” Fed. R. Civ. P.
20(a)(2); Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997) (setting forth
standard of review and explaining the requirements for permissive joinder).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments or allegations raised for the first time on appeal.
See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). We do not consider
issues that are not supported by argument. See Acosta-Huerta v. Estelle, 7 F.3d
139, 144 (9th Cir. 1992).
We reject as unsupported by the record Myers’s contentions that he was
denied due process, and that the district court erred by issuing the severance order
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while an extension of time to respond to the motion was pending and by denying
Myers’s request for sanctions.
All pending requests, set forth in the opening and reply briefs, are denied.
AFFIRMED.
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