Noel Smith v. Barbara Roberts

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 22, 2019
• Docket: 17-17032
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NOEL RAY SMITH, No. 17-17032

Plaintiff-Appellant, D.C. No. 3:16-cv-04764-WHO

v. MEMORANDUM* BARBARA ROBERTS, Supervisor; et al.,

Defendants-Appellees.

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). 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.

2 17-17032