FILED
NOT FOR PUBLICATION JAN 02 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOWARD ALLEN YOUNG, No. 12-16491
Plaintiff - Appellant, D.C. No. 1:07-cv-01121-AWI-
GSA
v.
CALIFORNIA DEPARTMENT OF MEMORANDUM*
CORRECTIONS AND
REHABILITATION; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted December 17, 2013**
Before: GOODWIN, WALLACE, and GRABER, Circuit Judges.
California state prisoner Howard Allen Young appeals pro se from the
district court’s judgment in his 42 U.S.C. § 1983 action alleging various
constitutional violations. We have jurisdiction under 28 U.S.C. § 1291. We
*
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).
review de novo. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003) (failure to
exhaust administrative remedies); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.
2000) (dismissal under 28 U.S.C. § 1915A). We may affirm on any ground
supported by the record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116,
1121 (9th Cir. 2008). We affirm.
The district court properly dismissed Young’s retaliation claim against
defendant Barron because Young failed properly to exhaust his administrative
remedies against this defendant prior to filing suit and failed to demonstrate that
administrative remedies were effectively unavailable to him. See Woodford v.
Ngo, 548 U.S. 81, 85, 93-95 (2006) (holding that “proper exhaustion” is mandatory
and requires adherence to administrative procedural rules); McKinney v. Carey,
311 F.3d 1198, 1199-201 (9th Cir. 2002) (per curiam) (prison grievance process
must be completed before a civil rights action is filed; exhaustion during the
pendency of the litigation will not save an action from dismissal as it is a
precondition to suit).
The district court properly dismissed Young’s due process claim against
defendant Barron arising from the alleged deprivation of his property by that
defendant because Young had an adequate post deprivation remedy under
California law. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (“[A]n
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unauthorized intentional deprivation of property by a state employee does not
constitute a violation of the procedural requirements of the Due Process Clause of
the Fourteenth Amendment if a meaningful post deprivation remedy for the loss is
available.”).
Dismissal of Young’s newly raised claims in his Second Amended
Complaint was proper because Young’s allegations concerning punishment for
refusing double cell housing, his classification status, and violation of his privacy
related to an intercepted medical request failed to state a claim. See Ivey v. Bd. of
Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) (liberal
interpretation of a pro se complaint may not supply essential elements of a claim
that were not pled).
Issues that are not specifically and distinctly raised and argued in the
opening brief, including those related to the dismissal of the remaining claims in
Young’s Second Amended Complaint, the denial of Young’s motions for summary
judgment, and the denial of Young’s motion for reconsideration, are deemed
waived. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
We do not consider Young’s argument concerning an Eighth Amendment
violation in the denial of access to shower shoes because it was raised for the first
time on appeal. See id.
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Young’s unopposed motion to file a late reply brief is granted, and the Clerk
shall file the reply brief received on September 30, 2013.
AFFIRMED.
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