Brian A. Jeremiah v. ALY, Sgt.;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN A. JEREMIAH,
Plaintiff-Appellant,
v.
ALY, Sgt.; et al.,
Defendants-Appellees.
No. 18-35450
D.C. No. 2:16-cv-00532-TC
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Submitted November 8, 2021**
Before: CANBY, TASHIMA, and MILLER, Circuit Judges.
Oregon state prisoner Brian A. Jeremiah appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging federal claims.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Thomas v.
Ponder, 611 F.3d 1144, 1149 (9th Cir. 2010). We affirm in part, vacate in part,
* 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).
FILED
NOV 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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and remand.
The district court properly granted summary judgment as to claims one
through 13 because Jeremiah failed to state a claim, failed to exhaust his
administrative remedies, and failed to raise a genuine dispute of material fact as to
whether administrative remedies were effectively unavailable. See Woodford v.
Ngo, 548 U.S. 81, 90 (2006) (proper exhaustion requires “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 internal quotation marks omitted)); Whitley v.
Albers, 475 U.S. 312, 319 (1986) (explaining that deliberate indifference must
involve more than ordinary lack of due care for a prisoner’s safety and constitute
conduct that is akin “obduracy and wantonness); McBride v. Lopez, 807 F.3d 982,
986-88 (9th Cir. 2015) (to show that a threat rendered the prison grievance system
unavailable, a prisoner must show that he subjectively believed prison officials
would retaliate against him and that his belief was objectively reasonable).
As to claims 14 through 16, Jeremiah presented evidence that he was
erroneously instructed by an administrator that he could not grieve these issues
because they arose from a misconduct report, and he also presented evidence that
this erroneous instruction appeared in other grievance responses. See Marella v.
Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (per curiam) (administrative
remedies may be effectively unavailable where the prisoner is reliably informed

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that he is not permitted to appeal a decision). We vacate and remand with respect
to claims 14 through 16 so the district court may consider this evidence.
The district court did not abuse its discretion by denying Jeremiah discovery
connected to defendants’ photographic evidence. See Sablan v. Dep’t of Fin., 856
F.2d 1317, 1321 (9th Cir. 1988) (“[A district court’s] decision to deny discovery
will not be disturbed except upon the clearest showing that denial of discovery
results in actual and substantial prejudice to the complaining litigant.” (citation and
internal quotation marks omitted)).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
The parties will bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.

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