JOHN DRAPER V. A. GARCIA, No. 17-16950 (9th Cir. 2018)
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FILED NOT FOR PUBLICATION OCT 26 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT JOHN CLINT DRAPER, U.S. COURT OF APPEALS No. 17-16950 Plaintiff-Appellant, D.C. No. 2:16-cv-01917-GEB-CKD v. MEMORANDUM* A. GARCIA, Defendant-Appellee. Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, Jr., District Judge, Presiding Submitted October 22, 2018** Before: SILVERMAN, GRABER, and GOULD, Circuit Judges. California state prisoner John Clint Draper 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 violations. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Williams v. Paramo, 775 F.3d 1182, * 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). 1191 (9th Cir. 2015). We affirm. The district court properly granted summary judgment because Draper did not exhaust his administrative remedies or 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) (describing the limited circumstances under which administrative remedies are deemed unavailable); Woodford v. Ngo, 548 U.S. 81, 90 (2006) (“[P]roper exhaustion of administrative remedies . . . means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).” (citation, internal quotation marks, and emphasis omitted)). The district court did not abuse its discretion by granting summary judgment without allowing Draper to conduct additional discovery because Draper failed to show what material facts would have been discovered that would have precluded summary judgment. See Klingele v. Eikenberry, 849 F.2d 409, 412 (9th Cir. 1988) (setting forth standard of review and recognizing that “[t]he burden is on the nonmoving party . . . to show what material facts would be discovered that would preclude summary judgment”). We reject as without merit Draper’s contentions that the district court denied him due process and equal protection. We do not consider arguments and allegations raised for the first time on 2 17-16950 appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). Draper’s requests to augment the record, set forth in his opening brief, and for appointment of counsel, set forth in his reply brief, are denied. AFFIRMED. 3 17-16950
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