NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 23 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EARNEST CASSELL WOODS, II, No. 14-15241
Plaintiff-Appellant, D.C. No. 3:11-cv-04730-JSW
v.
MEMORANDUM*
ROBERT L. AYERS, Jr., Warden; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Earnest Cassell Woods, II, appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging constitutional claims. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Williams v. Paramo,
775 F.3d 1182, 1191 (9th Cir. 2015) (dismissal for failure to exhaust administrative
*
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).
remedies); Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010) (dismissal under Fed.
R. Civ. P. 12(b)(6)). We may affirm on any ground supported by the record.
Whitaker v. Garcetti, 486 F.3d 572, 579 (9th Cir. 2007). We affirm in part, reverse
in part, and remand.
Dismissal of Woods’s retaliation claim was proper because Woods failed to
allege facts sufficient to show that defendants’ actions did not advance legitimate
goals of the correctional institution. See Watison v. Carter, 668 F.3d 1108, 1114
(9th Cir. 2012) (elements of a First Amendment retaliation claim in prison
context).
The district court properly dismissed Woods’s deprivation of property claim
because California state law provides an adequate post-deprivation remedy. See
Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (an unauthorized property
deprivation is not cognizable under § 1983 because California state law provides
an adequate post deprivation remedy).
The district court properly dismissed Woods’s First Amendment free
exercise claim because Woods did not allege facts sufficient to show that having
only ten minutes to eat a kosher meal on one occasion violated a sincerely held
religious belief. See Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008) (Free
2 14-15241
Exercise Clause is only implicated when a prison’s practices burden an inmate’s
sincerely held religious beliefs).
The district court properly dismissed Woods’s Eighth Amendment claim
regarding personal hygiene products because Woods failed to allege facts
sufficient to state a plausible claim. See Hebbe, 627 F.3d at 341-42 (pro se
plaintiff must present factual allegations sufficient to state a plausible claim for
relief).
To the extent that Woods argues he was deprived of due process in his
disciplinary hearings, Woods waived this claim by failing to replead it in his
second amended complaint. See Lacey v. Maricopa County, 693 F.3d 896, 928
(9th Cir. 2012) (en banc) (“[F]or any claims voluntarily dismissed, we will
consider those claims to be waived if not repled.”).
The district court concluded that Woods failed to exhaust administrative
remedies on his medical deliberate indifference claim. However, Woods submitted
two Third Level Appeals addressing his medical needs, and defendants did not
meet their burden of demonstrating that these appeals were properly screened
under existing regulations. See Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir.
2014) (en banc) (State bears the burden of proving that the prisoner did not exhaust
3 14-15241
available administrative remedies); Sapp v. Kimbrell, 623 F.3d 813, 822-23 (9th
Cir. 2010) (exhaustion is not required where administrative remedies are
“effectively unavailable” because an appeal is improperly screened); see also
Albino, 747 F.3d at 1173 (“[W]here prison officials decline[] to reach the merits of
a particular grievance for reasons inconsistent with or unsupported by applicable
regulations, [courts have concluded] administrative remedies were effectively
unavailable.” (citation and internal quotation marks omitted)). Accordingly, we
conclude that dismissal of this medical deliberate indifference claim was improper
and we remand for further proceedings.
We lack jurisdiction to consider the district court’s post-judgment order
denying Woods’s expert witness motion because Woods failed to file an amended
or separate notice of appeal. See Fed. R. App. P. 4(a)(4)(B)(ii); Whitaker v.
Garcetti, 486 F.3d at 585 (appellant generally must file a separate notice of appeal
or amend a previously filed notice of appeal to secure review of a post-judgment
order).
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).
We reject as without merit Woods’s contention that the district judge was
4 14-15241
biased against him.
We treat Woods’s requests, filed on August 13 and 14, 2015, as requests to
consider the document filed on August 3, 2015 as his reply brief, and grant the
requests.
Woods’s pending requests, set forth in his opening and reply briefs, are
denied.
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
5 14-15241