Albert Hayes v. M. VOONG, Acting Chief Inmate Appeal Officer;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALBERT HAYES,
Plaintiff-Appellant,
v.
M. VOONG, Acting Chief Inmate Appeal
Officer; et al.,
Defendants-Appellees.
No. 17-16653
D.C. No. 1:16-cv-01235-AWI-MJS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted January 16, 2018**
Before: REINHARDT, TROTT, and HURWITZ, Circuit Judges.
California state prisoner Albert Hayes appeals pro se from the district court’s
judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional and
statutory claims in connection with the processing of his administrative grievances.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for
* 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
JAN 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2 17-16653
failure to state a claim under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443,
447 (9th Cir. 2000). We affirm.
The district court properly dismissed Hayes’ Americans with Disabilities
Act (“ADA”) and Rehabilitation Act (“RA”) claims against defendants in their
individual capacities because Title II of the ADA and Section 504 of the RA do not
authorize claims against State officials in their individual capacities. See Vinson v.
Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002) (holding that “a plaintiff cannot
bring an action under 42 U.S.C. § 1983 against a State official in her individual
capacity to vindicate rights created by Title II of the ADA or section 504 of the
Rehabilitation Act”).
The district court properly dismissed Hayes’ ADA and RA claims against
defendants in their official capacities because Hayes failed to identify in his Third
Amended Complaint a policy or custom of the State that allegedly violated federal
law. See Hafer v. Melo, 502 U.S. 21, 25 (1991) (“Because the real party in interest
in an official-capacity suit is the governmental entity and not the named official,
the entity’s policy or custom must have played a part in the violation of federal
law.” (citation and internal quotation marks omitted)).
The district court did not abuse its discretion by denying Hayes leave to file
a Fourth Amended Complaint because further amendment would be futile. See
Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011)

-- 2 of 3 --

3 17-16653
(setting forth standard of review and explaining that dismissal without leave to
amend is proper when amendment would be futile); Chodos v. West Publ’g Co.,
292 F.3d 992, 1003 (9th Cir. 2002) (“[W]hen a district court has already granted a
plaintiff leave to amend, its discretion in deciding subsequent motions to amend is
particularly broad.” (citation and internal quotation marks omitted)).
The district court did not abuse its discretion by denying Hayes’ motions for
appointment of counsel because Hayes failed to demonstrate exceptional
circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting
forth standard of review and requirements for appointment of counsel).
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).
AFFIRMED.

-- 3 of 3 --