Jason Smith v. Johal ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASON ANDREW SMITH, No. 18-15492
Plaintiff-Appellant, D.C. No. 1:15-cv-01662-LJO-MJS
v.
MEMORANDUM*
JOHAL, Doctor; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief Judge, Presiding
Submitted February 19, 2019**
Before: FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.
Jason Andrew Smith, a California state prisoner, appeals pro se from the
district court’s summary judgment for failure to exhaust administrative remedies in
his 42 U.S.C. § 1983 action alleging Eighth Amendment claims. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Albino v. Baca, 747
*
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).
F.3d 1162, 1168 (9th Cir. 2014) (en banc). We affirm.
The district court properly granted summary judgment because Smith failed
to exhaust administrative remedies, and failed to raise a genuine dispute of material
fact as to whether administrative remedies were effectively unavailable to him.
See Woodford v. Ngo, 548 U.S. 81, 90 (2006) (the Prison Litigation Reform Act
requires “proper exhaustion,” which means “using all steps that the agency holds
out, and doing so properly (so that the agency addresses the issues on the merits)”
(citation and internal quotation marks omitted)); see also Cal. Code Regs. tit. 15
§§ 3084.1(b), 3086(i) (“Administrative remedies shall not be considered exhausted
to any new issue, information, or person later named by the appellant that was not
included in the originally submitted CDCR Form 602” and “[a]n inmate[’s] . . .
documented use of a Request for Interview, Item or Service form does not
constitute exhaustion of administrative remedies”).
The district court did not abuse its discretion in granting defendant’s motion
to stay discovery unrelated to exhaustion. See Albino, 747 F.3d at 1170 (“[A]
district court may in its discretion limit discovery to evidence concerning
exhaustion, leaving until later—if it becomes necessary—discovery directed to the
merits of the suit” (citation omitted)); Childress v. Darby Lumber, Inc., 357 F.3d
1000, 1009 (9th Cir. 2004) (standard of review).
We do not consider Smith’s contentions regarding the district court’s
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dismissal of his claims against defendants Johal, Zepp, and Klang because a prior
decision of this court affirmed the dismissal of those claims in Case No. 17-15252.
See Merritt v. Mackey, 932 F.2d 1317, 1320 (9th Cir. 1991) (under the law of the
case doctrine, an appellate court panel will not reconsider questions that another
panel has previously decided in the same case).
We reject as unsupported by the record Smith’s contentions that the
magistrate judge behaved improperly or violated his due process rights.
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).
Smith’s motion to take judicial notice (Docket Entry No. 21) is denied.
AFFIRMED.
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