Gary Merchant v. Corizon Health, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

GARY L. MERCHANT, No. 19-36093
Plaintiff-Appellant,
D.C. No.
v. 1:17-cv-00524-
BLW
CORIZON HEALTH, INC.,
Defendant,
OPINION
KEITH YORDY, Warden; IDAHO
DEPARTMENT OF CORRECTIONS;
DOES, John/Jane I–X; Whose true
identities are presently unknown,
Defendants,

and

CORIZON, LLC,
Defendant-Appellee,

JOHN MIGLIORI, M.D.; DAVID
AGLER, M.D.,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted December 10, 2020
Seattle, Washington
2 MERCHANT V. CORIZON HEALTH

Filed April 2, 2021

Before: M. Margaret McKeown, Danielle J. Hunsaker, and
Patrick J. Bumatay, Circuit Judges.

Opinion by Judge Hunsaker

SUMMARY *

Prisoner Civil Rights

The panel affirmed the district court’s exclusion of
expert evidence under Federal Rule of Civil Procedure
37(c)(1), and summary judgment in favor of prison officials
in an action alleging defendants were deliberately indifferent
to plaintiff’s medical needs.

The panel held that the district court did not err by
excluding plaintiff’s expert under Rule 37(c)(1) because
plaintiff repeatedly failed to meet his disclosure obligations,
as set forth in Rule 26(a)(2). The district court reasonably
concluded that plaintiff’s failures were not substantially
justified or harmless. The panel further noted that plaintiff
had never moved the district court for a lesser sanction.

Because the district court properly excluded plaintiff’s
expert witnesses, it did not err in granting summary
judgment to defendants because plaintiff failed to
demonstrate a genuine issue of material fact for trial.

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 MERCHANT V. CORIZON HEALTH 3

Moreover, the district court did not err in holding that
plaintiff failed to exhaust his administrative remedies
because he failed to file an Offender Concern Form—the
first step in Idaho Department of Corrections’ three-part
grievance system set forth in Standard Operating Procedure
316.02.01.001. The panel declined to construe plaintiff’s
Health Services Request as a properly filed grievance.

COUNSEL

Jason R.N. Monteleone (argued), Johnson & Monteleone
L.L.P., Boise, Idaho, for Plaintiff-Appellant.

Dylan A. Eaton (argued) and Andrew R. Alder, Parsons
Behle & Latimer, Boise, Idaho, for Defendants-Appellees.

OPINION

HUNSAKER, Circuit Judge:

This case demonstrates that flouting generally applicable
procedural rules—the rules of the game that all parties are
entitled to rely upon and expect courts to enforce—has
consequences. Sometimes even case-ending consequences.

Plaintiff-Appellant Gary Merchant is an Idaho prisoner.
He alleges that the Idaho Department of Corrections (IDOC)
and its medical provider, Corizon Health, Inc. (Corizon),
were deliberately indifferent to his medical needs and acted
with negligence. The primary issue presented in this appeal
is whether the district court erred by excluding Merchant’s
expert witnesses under Federal Rule of Civil
Procedure 37(c)(1), which was case dispositive, because
4 MERCHANT V. CORIZON HEALTH

Merchant did not properly disclose his experts under
Rule 26(a)(2). We conclude the district court did not err
because Merchant repeatedly failed to meet his disclosure
obligations, the district court reasonably concluded
Merchant’s failures were not substantially justified or
harmless, and Merchant never moved for a lesser sanction.
We also conclude the district court correctly found that
Merchant failed to exhaust his administrative remedies as
required by the Prison Litigation Reform Act (PLRA).

I. BACKGROUND

Merchant alleges that he swallowed a razor blade to
force his transport to a hospital because Corizon was
providing him inadequate medical care. Several hours after
arriving at the hospital, doctors diagnosed a necrotizing
fasciitis infection in Merchant’s left leg and determined that
an above-the-knee leg amputation was necessary to save his
life. Merchant alleges that he lost his leg because Corizon
did not timely diagnose and treat his leg infection.

A. Corizon’s Medical Care

In the weeks preceding Merchant’s orchestrated
hospitalization, he submitted several Health Services
Requests (HSRs) to Corizon. On January 22, 2016, he
submitted an HSR reporting a Chron’s Disease “flare-up”
and requesting Prednisone. Dr. John Migliori, a Corizon
employee, assessed Merchant, prescribed Prednisone, and
directed him to take Humira every two weeks to manage his
Chron’s-related pain. Merchant submitted another HSR a
week later, reporting elbow pain and bruising on his right
arm. A Corizon nurse determined that his vitals were normal,
wrapped his elbow, and recommended icing.
 MERCHANT V. CORIZON HEALTH 5

Merchant first complained of leg pain in an HSR dated
February 2. He requested “urgent” medical care due to
swelling in his left leg, which he described as twice the size
of his right leg. Merchant submitted another HSR the next
day and asked for a pair of compression socks to control
swelling in both legs. A Corizon nurse evaluated Merchant
and observed “+4 pitting edema” on both legs and scheduled
Merchant for an appointment with Dr. Migliori the following
day, February 4. However, Merchant “refuse[d] to be seen”
on February 4 and “[was] angry for unknown reasons.”
Dr. Migliori nonetheless reviewed Merchant’s HSRs and
prescribed Lasix (a diuretic) to address the leg swelling. On
February 5, Merchant requested an adjustment to his Lasix
prescription, but the next afternoon he again refused to see
Dr. Migliori. That night, February 6, Merchant told a prison
official that he needed emergency medical care; he
complained of diarrhea and said his swollen ankles
prevented him from walking. After consulting with the on-
call doctor, a Corizon nurse determined that Merchant did
not require emergency care and instructed him to fill out an
HSR form. An hour later, Merchant swallowed a razor blade
and was transported to the hospital.

B. Hospital Medical Care

Around 12:30 a.m. on February 7, Merchant told one of
the emergency room doctors that “he’[d] been experiencing
a Crohn’s flare-up . . . and just couldn’t take the pain
anymore.” He complained of “right-sided abdominal pain,”
but he did not report any leg pain. A physical examination
revealed that Merchant had a low-grade fever and that his
left calf was red, swollen, and bruised. An examination
around 3:00 a.m. revealed that Merchant had an elevated
white blood count, “which is suspicious for an infection.”
6 MERCHANT V. CORIZON HEALTH

The emergency room doctors admitted Merchant to the
intensive care unit (ICU) based on several concerns. They
reported that Merchant: (1) was on Coumadin (an anti-
coagulant) and at risk for perforation of his intestines
because he ingested a razor blade; (2) had atrial fibrillation
with rapid ventricular response; and (3) was experiencing a
Chron’s flare-up. Merchant was not admitted for leg
swelling, and when he was transferred to the ICU at
5:22 a.m., he had not been diagnosed with an infection. It
was not until several hours later that Merchant was
diagnosed with a necrotizing fasciitis infection in his left leg
and doctors determined that an above-the-knee leg
amputation was necessary.

C. District Court Proceedings

Merchant sued IDOC, Corizon, and several Corizon
employees (collectively, Corizon) 1 alleging that they acted
with deliberate indifference to a substantial risk of serious
harm in violation of 42 U.S.C. § 1983. He also brought two
negligence claims against Corizon—medical malpractice
and negligent retention, training, and supervision—under
Idaho law. Corizon pleaded failure to exhaust under the
PLRA as an affirmative defense.

In March 2019, the district court directed Merchant to
disclose expert witnesses by May 15 and rebuttal-expert
witnesses by July 22. The district court subsequently
extended the rebuttal-expert-disclosure date to August 16
after Merchant requested an extension to accommodate his

1
Merchant also sued the warden of the prison but agreed to
voluntarily dismiss those claims.
 MERCHANT V. CORIZON HEALTH 7

counsel’s three-week vacation. Merchant served the
following expert disclosures:

• May 17: Two days past the deadline, Merchant
disclosed Dr. Madsen as his only retained expert
witness. The disclosure failed to include a written
expert report as required by Federal Rule of Civil
Procedure 26(a)(2)(B).

• May 20: Five days past the deadline, Merchant
disclosed Dr. Madsen’s expert report, as well as
ten non-retained expert witnesses. In his non-
retained-expert disclosure, Merchant did not
summarize the facts and opinions to which those
experts would testify as required by Rule
26(a)(2)(C)(ii).

• July 15: 61 days past the deadline, Merchant
disclosed two more non-retained expert
witnesses.

• August 16: Merchant disclosed three rebuttal
experts—Dr. Madsen, Dr. Spellberg, and
Dr. Ginchereau—and several non-retained
expert rebuttal witnesses. Merchant indicated
that Dr. Madsen’s rebuttal testimony “was set
forth in her initial disclosure” and included only
Dr. Ginchereau’s expert report. The non-retained
expert disclosures did not summarize the facts
and opinions to which those experts would testify
as required by Rule 26(a)(2)(C)(ii).

• August 21: Five days after the rebuttal-disclosure
deadline, Merchant disclosed Dr. Spellberg’s
expert report.
8 MERCHANT V. CORIZON HEALTH

• September 26: Merchant filed an affidavit from
Dr. Dau who was listed as a non-retained expert
in his May 20 and August 16 disclosures. Dr. Dau
opined on the cause of Merchant’s infection.

Given Merchant’s repeated failure to comply with his
disclosure obligations, Corizon moved in limine to exclude
Merchant’s expert witnesses under Federal Rule of Civil
Procedure 37(c)(1). Corizon also moved for summary
judgment on all claims, arguing that Merchant’s claims
failed as a matter of law without expert testimony regarding
the standard of care and causation and that he failed to
exhaust his administrative remedies under the PLRA. In
response, Merchant argued that his five-day delay in
disclosing his experts did not prejudice Corizon and that his
untimeliness was substantially justified because his attorney
was “out of the country.” He also asserted that he exhausted
his administrative remedies by submitting several HSRs
before his hospitalization.

The district court heard argument on both motions and
found that Merchant had properly disclosed only one rebuttal
expert witness—Dr. Ginchereau. The district court also
found that Merchant’s noncompliance was not substantially
justified or harmless and concluded that Rule 37(c)(1) “is
really a self-executing automatic sanction” that excludes
improperly disclosed expert evidence absent such a showing.
Regarding Corizon’s motion for summary judgment, the
district court held that Merchant could not rely on his one
properly disclosed rebuttal expert to establish his case in
chief, and without expert evidence, he had established
neither deliberate indifference nor negligence. Finally, the
district court determined that the PLRA precluded
Merchant’s Section 1983 claim because he had failed to
exhaust his administrative remedies.
 MERCHANT V. CORIZON HEALTH 9

II. DISCUSSION

We review a district court’s imposition of a discovery
sanction for an abuse of discretion, and any factual findings
related to that sanction are reviewed for clear error. Leon v.
IDX Sys. Corp., 464 F.3d 951, 957–58 (9th Cir. 2006).
However, we interpret the Federal Rules of Civil Procedure
de novo. Republic of Ecuador v. Mackay, 742 F.3d 860, 864
(9th Cir. 2014). We also review de novo a district court’s
grant of summary judgment based on a failure to exhaust
administrative remedies. Albino v. Baca, 747 F.3d 1162,
1172 (9th Cir. 2014) (en banc).

A. Expert Disclosures

Merchant argues that the district court erred in excluding
his expert medical evidence on which his claims depend.
Specifically, he claims that exclusion of his witnesses was
an unjustifiably harsh sanction considering his de minimis
violations of Federal Rule of Civil Procedure 26(a)(2)—the
rule governing expert witness disclosures. We therefore
review Merchant’s compliance with Rule 26(a)(2) before
analyzing the district court’s sanction under Rule 37(c)(1).

1. Rule 26(a)(2) Disclosures

Rule 26(a)(2) requires litigants to disclose all expert
witnesses “at the times and in the sequence that the court
orders.” Goodman v. Staples The Office Superstore, LLC,
644 F.3d 817, 827 (9th Cir. 2011). The disclosure of experts
“retained or specially employed to provide expert testimony
in the case” must provide, among other things, a signed
report with “a complete statement of all opinions the witness
will express and the basis and reasons for them,” as well as
“the facts or data considered by the witness in forming
them.” Fed. R. Civ. P. 26(a)(2)(B)(i), (ii). A treating
10 MERCHANT V. CORIZON HEALTH

physician who is expected to testify regarding opinions
“formed during the course of treatment” need not submit a
detailed expert report. Goodman, 644 F.3d at 826.
Nonetheless, disclosures of non-retained, treating physicians
must include “(i) the subject matter on which the witness is
expected to present evidence under Federal Rule of
Evidence 702, 703, or 705; and (ii) a summary of the facts
and opinions to which the witness is expected to testify.”
Fed. R. Civ. P. 26(a)(2)(C); see also Fed. R. Civ. P. 26
advisory committee’s note to 2010 amendment.

Although Merchant admits he violated Rule 26(a)(2), he
repeatedly asserts that he missed the initial-disclosure
deadline by only a few days. This characterization, however,
is at odds with the district court’s finding that Merchant
persistently disregarded Rule 26(a)(2) throughout the course
of discovery—a conclusion supported by the record. To be
sure, some of Merchant’s disclosures were only five days
late. But he disclosed other expert evidence 61 and 134 days
past the deadline. Moreover, Merchant’s non-retained-
expert disclosures neither specified nor summarized each
witness’s anticipated testimony. And on May 17 and
August 16, he failed to include an expert report for his
retained expert witnesses. We therefore reject Merchant’s
attempt to downplay the extent of his discovery violations
and hold that the district court did not clearly err in finding
that Merchant repeatedly failed to comply with
Rule 26(a)(2).

2. Rule 37(c)(1) Sanctions

The district court sanctioned Merchant by excluding his
improperly disclosed expert evidence under Federal Rule of
Civil Procedure 37(c)(1), which provides:
 MERCHANT V. CORIZON HEALTH 11

(1) Failure to Disclose or Supplement. If a
party fails to provide information or identify
a witness as required by Rule 26(a) or (e), the
party is not allowed to use that information or
witness to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was
substantially justified or is harmless. In
addition to or instead of this sanction, the
court, on motion and after giving an
opportunity to be heard:

(A) may order payment of the reasonable
expenses, including attorney’s fees,
caused by the failure;

(B) may inform the jury of the party’s
failure; and

(C) may impose other appropriate
sanctions, including any of the orders
listed in Rule 37(b)(2)(A)(i)–(vi).

The district court was correct that Rule 37(c)(1) is an
“automatic” sanction that prohibits the use of improperly
disclosed evidence. Yeti by Molly, Ltd. v. Deckers Outdoor
Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). As the Rule
plainly states, litigants can escape the “harshness” of
exclusion only if they prove that the discovery violations
were substantially justified or harmless. Id. (citing Fed. R.
Civ. P. 37(c)(1)). The automatic nature of the rule’s
application does not mean that a district court must exclude
evidence that runs afoul of Rule 26(a) or (e)—Rule 37(c)(1)
authorizes appropriate sanctions “[i]n addition to or instead
of [exclusion].” Fed. R. Civ. P. 37(c)(1). Rather, the rule is
automatic in the sense that a district court may properly
impose an exclusion sanction where a noncompliant party
12 MERCHANT V. CORIZON HEALTH

has failed to show that the discovery violation was either
substantially justified or harmless. Yeti by Molly, 259 F.3d
at 1106–07.

Merchant argues that because the district court excluded
case-dispositive evidence, this court should consider factors
traditionally considered in evaluating dismissal sanctions
under Rule 37(b)(2)(A)(v). Merchant’s argument finds some
support in our decision in R & R Sails, Inc. v. Insurance Co.
of Pennsylvania, 673 F.3d 1240, 1246–48 (9th Cir. 2012).
There, we held that if a Rule 37(c)(1) sanction will “deal[] a
fatal blow” to a party’s claim, a district court must consider
(1) “whether the claimed noncompliance involved
willfulness, fault, or bad faith” and (2) “the availability of
lesser sanctions.” Id. at 1247. We usually apply these factors
to Rule 37(b)(2)(A)(v) sanctions of dismissal. See, e.g.,
Henry v. Gill Indus., Inc., 983 F.2d 943, 946, 948 (9th Cir.
1993); Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir.
1990). But R & R Sails held that when excluding case-
dispositive evidence under Rule 37(c)(1), a district court
must consider these two factors as part of its “harmlessness
inquiry.” 673 F.3d at 1247. R & R Sails further held that a
district court abuses its discretion in excluding case-
dispositive evidence if it fails to “conduct[] this inquiry” or
“make the requisite findings.” Id. at 1248.

Although R & R Sails incorporated Rule
37(b)(2)(A)(v)’s two-factor test into Rule 37(c)(1)’s
harmlessness inquiry, it did nothing to disturb Rule
37(c)(1)’s textual requirement that a party facing sanctions
under that provision bears the burden of showing that a
sanction other than exclusion is better suited to the
circumstances. Rule 37(c)(1) authorizes district courts to
impose a lesser sanction—one “[i]n addition to or instead of”
exclusion—“on motion and after giving an opportunity to be
 MERCHANT V. CORIZON HEALTH 13

heard.” Fed. R. Civ. P. 37(c)(1). Accordingly, a
noncompliant party must “avail himself of the opportunity
to seek a lesser sanction” by formally requesting one from
the district court. Vanderberg v. Petco Animal Supplies
Stores, Inc., 906 F.3d 698, 705 (8th Cir. 2018). Where a
party does not move for a lesser sanction, however, “the
party is not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a trial.” Fed.
R. Civ. P. 37(c)(1). In such circumstances, a district court
does not abuse its discretion in excluding evidence under the
plain meaning of Rule 37(c)(1). Vanderberg, 906 F.3d
at 705; see also Wilson v. Bradlees of New Eng., Inc.,
250 F.3d 10, 21 (1st Cir. 2001). We agree with the Eighth
Circuit that to require district courts to consider lesser
sanctions without a motion “would collapse the rule’s
provision of automatic exclusion of undisclosed evidence
(except where harmless or substantially justified), with the
option of alternative or additional sanctions on a party’s
motion, into an open-ended approach that is divorced from
the text of the rule.” Vanderberg, 906 F.3d at 705; see also
Design Strategy, Inc. v. Davis, 469 F.3d 284, 298 (2d Cir.
2006) (“[T]he plain text of the rule provides that if an
appropriate motion is made and a hearing has been held, the
court does have discretion to impose other, less drastic,
sanctions.” (emphasis added)).

This approach accords with the longstanding principles
that district courts have “wide latitude” under Rule 37(c)(1)
and that “the burden is on the party facing sanctions to prove
harmlessness.” Yeti by Molly, 259 F.3d at 1106–07 (citing
Wilson, 250 F.3d at 21); see also Benjamin v. B&H Educ.,
Inc., 877 F.3d 1139, 1150 (9th Cir. 2017). As such, if the
noncompliant party fails to argue harmlessness, a district
court need not hold a sua sponte hearing on that issue before
imposing Rule 37(c)(1)’s default sanction. See generally
14 MERCHANT V. CORIZON HEALTH

Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175
(9th Cir. 2008). Likewise, if the noncompliant party fails to
move for lesser sanctions, the district court is not required to
consider one and does not abuse its discretion in excluding
evidence where such action is otherwise justified.
Vanderberg, 906 F.3d at 705.

We recognize that under R & R Sails, when a district
court excludes case-dispositive evidence under Rule
37(c)(1), it must consider lesser sanctions as part of its
“harmlessness inquiry.” 673 F.3d at 1247. In that case,
however, the noncompliant party moved the district court to
reconsider its Rule 37(c)(1) sanction. Id. at 1245. And in
moving for reconsideration, the noncompliant party properly
“avail[ed] [itself] of the opportunity to seek a lesser
sanction,” Vanderberg, 906 F.3d at 705. R & R Sails’s lesser-
sanction requirement is thus limited to situations where the
request for an alternative sanction is presented “on [the
noncompliant party’s] motion.” Fed. R. Civ. P. 37(c)(1).

Here, Merchant never moved the district court for a
lesser sanction. Although he objected to exclusion of his
experts in opposing Corizon’s motion in limine, he neither
moved for an alternative sanction nor moved for
reconsideration of the district court’s ruling on Corizon’s
motion. Therefore, we hold that Merchant failed to trigger R
& R Sails’s lesser-sanction requirement. Without that
trigger, the district court did not abuse its discretion in
imposing Rule 37(c)(1)’s default exclusion sanction. 2

2
Even were we to consider the factors that R & R Sails held must be
addressed as part of Rule 37(c)(1)’s harmlessness inquiry, we still would
conclude the district court did not err. 673 F.3d at 1247. The excuses
Merchant’s counsel gave for the disclosure failures were within his
control, Henry, 983 F.2d at 948, and the district court found that they
 MERCHANT V. CORIZON HEALTH 15

Because the district court properly excluded Merchant’s
expert witnesses, we further conclude it did not err in
granting summary judgment to defendants because
Merchant failed to demonstrate a genuine issue of material
fact for trial.

B. Exhaustion of Administrative Remedies

We also address Merchant’s objection to the district
court’s conclusion that his Section 1983 claim failed as a
matter of law because he failed to exhaust his administrative
remedies. Before challenging prison conditions under
Section 1983, a prisoner must exhaust “such administrative
remedies as are available.” 42 U.S.C. § 1997e(a). The PLRA
requires “proper exhaustion.” Woodford v. Ngo, 548 U.S. 81,
90 (2006). This standard demands “compliance with [a
prison’s] deadlines and other critical procedural rules.” Id.
“[T]he defendant in a PLRA case must plead and prove
nonexhaustion as an affirmative defense.” Albino, 747 F.3d
at 1171. Once the defendant has made such a showing, “the
burden shifts to the prisoner to come forward with evidence
showing that there is something in his particular case that
made the existing and generally available administrative
remedies effectively unavailable to him.” Id. at 1172.

Here, Corizon timely pleaded nonexhaustion as an
affirmative defense and established at summary judgment
that Merchant failed to file an Offender Concern Form—the
first step in IDOC’s three-part grievance system set forth in

were easily avoidable, which is supported by the record. The district
court also considered the appropriateness of lesser sanctions, despite
Merchant’s failure to move for such, and found that Merchant’s
“chronic” noncompliance prejudiced Corizon and that imposing a lesser
sanction would unjustly benefit Merchant at Corizon’s expense. This
was not an abuse of discretion.
16 MERCHANT V. CORIZON HEALTH

Standard Operating Procedure 316.02.01.001 (Grievance
Process). Merchant does not argue that the Grievance
Process was unavailable to him. Instead, he claims that
prisoners with medical complaints need not follow the
Grievance Process. Specifically, he contends that such
prisoners may instead exhaust their administrative remedies
by submitting HSRs to Corizon. Merchant’s theory is belied
by the record.

The Grievance Process explicitly instructs prisoners with
medical complaints to file an Offender Concern Form. The
warden also testified that prisoners challenge healthcare-
related decisions via the Grievance Process whereas HSRs
are used to request medical attention. Indeed, Merchant filed
two different Offender Concern Forms complaining about
his medical care several years before the subject incident—
evidence undermining any suggestion that Merchant did not
understand the Grievance Process.

Despite this evidence, Merchant contends that his HSRs
constitute properly exhausted grievances. Citing Griffin v.
Arpaio, he argues that “a grievance suffices if it alerts the
prison to the nature of the wrong for which redress is sought”
and that his HSRs met this standard because they “alert[ed]”
Corizon to his leg pain. 557 F.3d 1117, 1120 (9th Cir. 2009)
(citation omitted). The problem with Merchant’s argument
is that Griffin concerns the level of specificity required in a
grievance form. Id. Griffin is thus inapposite to this appeal
because Merchant’s HSRs cannot be characterized as
grievances—i.e., “retrospective complaints about the denial
of [medical] services.” Small v. Camden Cnty., 728 F.3d
265, 272 (3d Cir. 2013) (citation omitted); Black’s Law
Dictionary (11th ed. 2019) (defining a grievance as “[t]he
complaint itself”). Merchant’s HSRs were only “prospective
requests” for services. Small, 728 F.3d at 272. They never
 MERCHANT V. CORIZON HEALTH 17

provided IDOC “a fair opportunity to correct [its alleged]
error[],” Ngo, 548 U.S. at 94. We therefore decline to
construe Merchant’s HSRs as properly filed grievances and
affirm the district court’s grant of summary judgment to
Corizon on Merchant’s Section 1983 claim because he failed
to exhaust his administrative remedies as required by the
PLRA. 3

III. CONCLUSION

The district court did not err in excluding Merchant’s
improperly disclosed expert evidence under Rule 37(c)(1) or
in granting summary judgment to the defendants because
Merchant failed to demonstrate a genuine issue of material
fact for trial. Nor did the district court err in holding that
Merchant failed to exhaust his administrative remedies, thus
defeating his Section 1983 claim.

AFFIRMED.

3
Merchant suggested at oral argument that IDOC’s three-step
procedure bars prisoners from seeking relief in the emergency-medical
context. Merchant failed to raise this argument to the district court or in
his appellate briefing, and we therefore decline to consider it. See
Bracken v. Okura, 869 F.3d 771, 776 n.3 (9th Cir. 2017).