Dewey Terry v. Phillip Earley

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

DEWEY STEVEN TERRY, No. 17-15184

Plaintiff-Appellant, D.C. No. 3:13-cv-01227-EMC

v.
MEMORANDUM*
PHILLIP EARLEY; et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding

Submitted November 15, 2017**

Before: CANBY, TROTT, and GRABER, Circuit Judges.

Dewey Steven Terry, a California state prisoner, appeals pro se from the

district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that

defendants were deliberately indifferent to his health and safety. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Wallis v. Baldwin, 70

*
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).
F.3d 1074, 1076 (9th Cir. 1995). We affirm.

The district court properly granted summary judgment on Terry’s Eighth

Amendment claim because Terry failed to raise a genuine dispute of material fact

as to whether “he himself [wa]s being exposed to unreasonably high levels” of

asbestos and lead. Helling v. McKinney, 509 U.S. 25, 35-36 (1993) (setting forth

evidence needed to prevail on a claim of deliberate indifference based on exposure

to second-hand smoke); see also Wallis, 70 F.3d at 1077.

The district court properly granted summary judgment on Terry’s state law

claims because Terry did not comply with the claim-presentment requirement of

the California Government Claims Act. See Cal. Gov’t Code § 911.2; Ellis v. City

of San Diego, Cal., 176 F.3d 1183, 1190 (9th Cir. 1999); California v. Superior

Court (Bodde), 90 P.3d 116, 122 (Cal. 2004).

The district court did not abuse its discretion in denying Terry’s motion to

alter or amend the judgment because Terry failed to demonstrate any grounds for

such relief. See Dixon v. Wallowa County, 336 F.3d 1013, 1022 (9th Cir. 2003)

(setting forth standard of review and requirements for granting relief under Fed. R.

Civ. P. 59(e)).

Appellee Young’s request to strike settlement documents attached to Terry’s

filings, set forth in his answering brief, is granted. The Clerk of Court is hereby

directed to strike Exhibit 1 to Docket Entries 10, 12, and 29 because all three of the

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exhibits contain confidential settlement information.

AFFIRMED.

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