NOT FOR PUBLICATION FILED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
LANCE CONWAY WOOD, No. 15-35241
Plaintiff-Appellant, D.C. No. 2:14-cv-00102-TC
v.
MEMORANDUM*
OREGON DEPARTMENT OF
CORRECTIONS; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Lance Conway Wood, a Utah state prisoner housed in an Oregon state
prison, 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 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 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).
review de novo. Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). We
affirm in part, vacate in part, and remand.
The magistrate judge recommended revoking Wood’s in forma pauperis
status, but it is not clear whether the district court adopted this recommendation.
However, we conclude that this appeal is not frivolous and grant in forma pauperis
on appeal.
The district court properly granted summary judgment on Wood’s claims
regarding denial of access to courts, denial of marriage, rejection of mail
containing “romantic content,” delayed mail, and insufficient postage because
Wood failed to raise a genuine dispute of material fact as to whether he properly
exhausted his administrative remedies as to these claims, or whether administrative
remedies were effectively unavailable. See Woodford v. Ngo, 548 U.S. 81, 84, 90
(2006) (requiring proper exhaustion, which means “using all steps that the agency
holds out, and doing so properly (so that the agency addresses the issues on the
merits)” (emphasis, citation, and quotation marks omitted)); see also Ross v. Blake,
136 S. Ct. 1850, 1858-60 (2016) (explaining that an inmate need not exhaust
unavailable administrative remedies and setting forth circumstances under which
an administrative procedure is unavailable).
However, the district court improperly granted summary judgment on
Wood’s claim regarding the denial of visitation rights. Unlike the general
2 15-35241
grievance process, which explains what an inmate may do if he fails to receive a
timely response, the visitation policy does not provide any such guidance; rather,
such a grievance is exhausted when the Institutions Director or designee issues a
decision, and the record does not reflect any such decision, despite Wood’s
evidence that he mailed the proper grievance. Because the district court did not
consider whether administrative remedies were unavailable to Wood, see Ross, 136
S. Ct. at 1858-60, we vacate the judgment in part and remand for further
proceedings as to this claim only.
Wood does not challenge the district court’s grant of summary judgment for
defendant Oregon Department of Corrections (“ODOC”) on the basis of Eleventh
Amendment immunity, and thus he has waived any challenge to the district court’s
summary judgment for ODOC. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.
1999) (“[O]n appeal, arguments not raised by a party in its opening brief are
deemed waived[.]”).
The district court did not abuse its discretion by denying Wood’s motion for
discovery because Wood failed to show that the evidence he sought to discover
would have precluded summary judgment. See Klingele v. Eikenberry, 849 F.2d
409, 412-13 (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”).
3 15-35241
We reject as without merit Wood’s contention regarding the declaration of
Clig because the declaration was immaterial to whether Wood failed to exhaust
administrative remedies.
We reject as without merit Wood’s contentions regarding the severance of
McKenzie’s claims and that Wood was prejudiced because both he and McKenzie
were required to pay a separate filing fee.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
4 15-35241