Noel Ray Smith v. BARBARA ROBERTS, Supervisor;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NOEL RAY SMITH,
Plaintiff-Appellant,
v.
BARBARA ROBERTS, Supervisor; et al.,
Defendants-Appellees.
No. 17-17032
D.C. No. 3:16-cv-04764-WHO
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick, District Judge, Presiding
Submitted January 15, 2019**
Before: TROTT, TALLMAN, and CALLAHAN, Circuit Judges.
California state prisoner Noel Ray Smith appeals pro se from the district
court’s summary judgment in his action alleging violations of the Americans with
Disabilities Act (“ADA”) and Rehabilitation Act (“RA”) in connection with his
termination from his job assignment at the prison textile mill. We have jurisdiction
* 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 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 17-17032
under 28 U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051,
1056 (9th Cir. 2004). We affirm.
The district court properly granted summary judgment on Smith’s ADA and
RA claims because Smith failed to raise a genuine dispute of material fact as to
whether Smith was a qualified individual with a disability, in light of the risk he
posed to the health and safety of others. See Bay Area Addiction Research &
Treatment, Inc. v. City of Antioch, 179 F.3d 725, 735-36 (9th Cir. 1999) (applying
the significant risk test to ADA and RA claims); see also Pierce v. County of
Orange, 526 F.3d 1190, 1216-17 (9th Cir. 2008) (to prevail on an ADA or RA
claim, an inmate must show that the challenged prison policy is unreasonable).
The district court did not abuse its discretion by denying Smith’s motion for
a preliminary injunction because Smith failed to demonstrate a likelihood of
success on the merits. See Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20-21
(2008) (factors for evaluating a motion for a preliminary injunction); Sierra Forest
Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009) (standard of review).
We do not consider 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.

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