Gregory Gray v. D. Bright

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GREGORY LEE GRAY, No. 18-16806

Plaintiff-Appellant, D.C. No. 3:15-cv-03277-RS

v. MEMORANDUM* D. BRIGHT; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Richard Seeborg, District Judge, Presiding

Submitted July 15, 2019**

Before: SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.

California state prisoner Gregory Lee Gray appeals pro se from the district

court’s summary judgment and dismissal order in his action alleging federal claims

arising out of the denial of his request for a single cell. We have jurisdiction under

28 U.S.C. § 1291. We review de novo. Mendoza v. The Roman Catholic

* 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). Archbishop of L.A., 824 F.3d 1148, 1149 (9th Cir. 2016) (summary judgment);

Hamilton v. Brown, 630 F.3d 889, 892 (9th Cir. 2011) (dismissal under 28 U.S.C.

§ 1915A). We affirm.

The district court properly granted summary judgment on Gray’s medical

deliberate indifference claim because, even assuming Gray properly exhausted his

administrative remedies, Gray failed to raise a genuine dispute of material fact as

to whether defendants were deliberately indifferent in treating his snoring by not

giving him a single cell. See Toguchi v. Chung, 391 F.3d 1051, 1057-60 (9th Cir.

2004) (a prison official is deliberately indifferent only if he or she knows of and

disregards an excessive risk to inmate health).

The district court properly granted summary judgment on Gray’s Americans

with Disabilities Act (“ADA”) failure-to-accommodate claim because Gray failed

to raise a genuine dispute of material fact as to whether defendants discriminated

against him because of his disability. See Simmons v. Navajo County, Ariz., 609

F.3d 1011, 1021-22 (9th Cir. 2011) (discussing elements of a failure-to-

accommodate claim under ADA), overruled on other grounds by Castro v. County

of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc).

The district court properly dismissed Gray’s failure-to-protect claim because

Gray failed to allege facts sufficient to show that the denial of Gray’s request for a

single cell posed a substantial risk of serious harm that defendants knew of and

2 18-16806 disregarded. See Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074

(9th Cir. 2013) (elements of a failure-to-protect claim).

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.

3 18-16806