NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 26 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN CLINT DRAPER, 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