Stephen Farrar v. Colette Peters , 698 F. App'x 414 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 4 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHEN L. FARRAR, No. 16-35496
Plaintiff-Appellant, D.C. No. 6:15-cv-01935-KI
v.
MEMORANDUM*
COLETTE PETERS, director of O.D.O.C.;
et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Submitted September 21, 2017**
Before: SCHROEDER, HAWKINS, and N.R. SMITH, Circuit Judges.
Oregon state prisoner Stephen L. Farrar appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging deliberate
indifference to his serious medical needs and due process violations. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Williams v. Paramo,
*
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).
775 F.3d 1182, 1191 (9th Cir. 2015) (failure to exhaust administrative remedies);
Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004) (summary judgment). We
affirm.
The district court properly granted summary judgment on Farrar’s deliberate
indifference claims because Farrar did not properly exhaust all steps of the
grievance process, and he did not show that administrative remedies were
effectively unavailable to him. See Woodford v. Ngo, 548 U.S. 81, 90 (2006)
(exhaustion requires that an inmate must use “all steps that the agency holds out,
and [do] so properly” (citation and internal quotation marks omitted)); Vaden v.
Summerhill, 449 F.3d 1047, 1150-51 (9th Cir. 2006) (prisoner did not exhaust his
administrative remedies because he sent his complaint to the district court while
his inmate appeal was still pending).
The district court properly granted summary judgment on Farrar’s due
process claim because, even assuming a protected liberty interest, Farrar failed to
raise a genuine dispute of material fact as to whether defendants violated his due
process rights. See Superintendent v. Hill, 472 U.S. 445, 455 (1985) (requirements
of due process are satisfied if “some evidence” supports disciplinary decision);
Wolff v. McDonnell, 418 U.S. 539, 563-70 (1974) (setting forth due process
requirements for prison disciplinary proceedings).
Contrary to Farrar’s contention, the district court did not err in refusing to
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enter a stay. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002)
(rejecting appellant’s argument that “the court should have entered a stay that
would have provided an opportunity for exhaustion” because “dismissal is required
under 42 U.S.C. 1997e(a)”).
The district court did not abuse its discretion in denying Farrar’s motion for
appointment of counsel because Farrar did not demonstrate “exceptional
circumstances.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting forth
standard of review and requirement of “exceptional circumstances” for
appointment of counsel).
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, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
We do not consider documents and facts not presented to the district court.
United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not
presented to the district court are not part of the record on appeal.”).
AFFIRMED.
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