Faye Slice v. Robert McFadden ( 2013 )

FILED
NOT FOR PUBLICATION AUG 02 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FAYE ELISE SLICE, No. 12-15726
Plaintiff - Appellant, D.C. No. 4:09-cv-03253-PJH
v.
MEMORANDUM *
ROBERT McFADDEN, Western Regional
Director FBOP; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Submitted July 24, 2013 **
Before: ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.
Former federal prisoner Faye Elise Slice appeals pro se from the district
court’s judgment in her action, brought under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
defendants violated her Eighth Amendment rights. We have jurisdiction under 28
U.S.C. § 1291. We review de novo summary judgment, Jones v. Blanas, 393 F.3d
918, 926 (9th Cir. 2004), and a dismissal for failure to exhaust administrative
remedies under the Prison Litigation Reform Act, Wyatt v. Terhune, 315 F.3d
1108, 1117 (9th Cir. 2003). We may affirm on any basis supported by the record.
Van Asdale v. Int’l Game Tech., 577 F.3d 989, 994 (9th Cir. 2009). We affirm.
The district court properly granted summary judgment on Slice’s claims
concerning pesticides, overcrowding, building dilapidation and “sick building
syndrome” because Slice failed to raise a genuine dispute of material fact as to
whether defendants knew of and consciously disregarded a serious risk of harm to
her health. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (prisoner must make
a subjective showing that prison officials knew of and disregarded “an excessive
risk to inmate health or safety”); Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir.
2011) (discussing the requirements for establishing supervisory liability).
The district court properly dismissed Slice’s remaining claims concerning
the plywood incident, ventilation, food quality, lighting, mattresses, medical care,
and disciplinary action without prejudice because Slice failed to exhaust her
administrative remedies. See Woodford v. Ngo, 548 U.S. 81, 93-95 (2006)
(requiring proper and timely exhaustion of prisoner claims). The district court did
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not clearly err in finding that Slice failed to pursue all levels of administrative
remedies available to her. Cf. Sapp v. Kimbrell, 623 F.3d 813, 821-23 (9th Cir.
2010) (reviewing factual determinations for clear error and stating that exhaustion
is not required where administrative remedies are rendered “effectively
unavailable”).
Dismissal of Slice’s claims against defendant Watts was proper for the same
reasons that dismissal of the claims against the moving defendants was proper. See
Farmer, 511 U.S. at 837; see also Ngo, 548 U.S. at 93-95.
Slice’s contentions concerning discovery and the court’s alleged failure to
construe her pleadings liberally are unpersuasive.
We do not consider Slice’s allegations concerning lack of access to legal
resource materials raised for the first time on appeal. See Padgett v. Wright, 587
F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
AFFIRMED.
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