Lawrence George Hash v. CHARLES DUDLEY LEE, Health Care Manager, SVSP;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAWRENCE GEORGE HASH,
Plaintiff - Appellant,
v.
CHARLES DUDLEY LEE, Health Care
Manager, SVSP; et al.,
Defendants - Appellees.
No. 14-16727
D.C. No. 3:08-cv-03729-MMC
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, District Judge, Presiding
Submitted January 20, 2016**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Lawrence George Hash, a California state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
retaliation and deliberate indifference to his safety and serious medical needs. We
FILED
JAN 28 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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have jurisdiction under 28 U.S.C. § 1291. We review de novo. Williams v.
Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (failure to exhaust administrative
remedies); Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004) (summary
judgment). We affirm.
The district court properly granted summary judgment on Hash’s claims
against defendants Blackstone, Mantel, Gantt, Rosa, Stevens, Thacker, Pistone,
Burke, Washington, Perez, Mays, Walker, Lewis, Winn, Torrez, Variz, and Gomez
because Hash did not properly exhaust his administrative remedies, and he did not
show that administrative remedies were effectively unavailable to him. See
Woodford v. Ngo, 548 U.S. 81, 90 (2006) (“[P]roper exhaustion of administrative
remedies . . . means using all steps that the agency holds out, and doing so properly
(so that the agency addresses the issues on the merits).” (internal citation and
quotation marks omitted)); McBride v. Lopez, 807 F.3d 982, 987 (9th Cir. 2015)
(explaining that to show that a threat rendered the prison grievance system
unavailable, a prisoner must show that he actually believed prison officials would
retaliate against him, and that his belief was objectively reasonable); Sapp v.
Kimbrell, 623 F.3d 813, 823-24, 826-27 (9th Cir. 2010) (describing limited
circumstances where improper screening renders administrative remedies
unavailable or where exhaustion might otherwise be excused). Moreover, the
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district court properly granted summary judgment on Hash’s retaliation claim
against defendant Kessler and his deliberate indifference claim against defendant
Bowman for the same reasons. See Woodford, 548 U.S. at 90; McBride, 807 F.3d
at 987; Sapp, 623 F.3d at 823-24, 826-27.
The district court properly granted summary judgment on Hash’s deliberate
indifference claim against defendant Kessler because Hash failed to raise a genuine
dispute of material fact as to whether Kessler was aware of a substantial risk of
serious harm. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (“[A] prison
official cannot be found liable under the Eighth Amendment . . . unless the official
knows of and disregards an excessive risk to inmate health or safety; the official
must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.”).
Moreover, the district court properly granted summary judgment on Hash’s
deliberate indifference claim against defendants Arceo, Bowman, Delfs, Grannis,
Kates, Krossa, Lee, and Wall because Hash failed to raise a genuine dispute of
material fact as to whether these defendants failed to provide adequate post-
hospitalization care. See id.
The district court did not abuse its discretion by considering defendants’
relevant declarations, which were signed under penalty of perjury and based on
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personal knowledge. See Barthelemy v. Air Lines Pilots Ass’n, 897 F.2d 999, 1018
(9th Cir. 1990) (per curiam) (setting forth standard of review and explaining that
“personal knowledge and competence to testify are reasonably inferred from [the
declarants’] positions and the nature of their participation in the matters to which
they swore . . . .”). The declarations that were not signed under penalty of perjury
were not necessary to the district court’s decision. We reject as without merit
Hash’s contentions regarding alleged procedural defects in defendants’ motion
papers.
Hash’s request to file a reply in support of his Fed. R. App. P. 28(j) letter,
filed on August 6, 2015, is denied.
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) (per curiam).
AFFIRMED.
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