requiring approval of an application to provide a religious diet does not unduly burden a prisoner’s right to practice his religion
How later courts described this case
- requiring approval of an application to provide a religious diet does not unduly burden a prisoner’s right to practice his religion
- “[PJroper 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)” (emphasis, citation, and internal quotation marks omitted)
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 22 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHANE BROOKS, No. 17-15571
Plaintiff-Appellant, D.C. No. 2:14-cv-00497-APG-
CWH
v.
LISA WALSH, Assistant Warden of MEMORANDUM*
Programs and Grievance Co-ordinator; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Submitted November 15, 2017**
Before: CANBY, TROTT, and GRABER, Circuit Judges.
Shane Brooks, a Nevada state prisoner, appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging First
Amendment free exercise and access-to-court claims. We have jurisdiction under
28 U.S.C. § 1291. We review de novo. Mendiola-Martinez v. Arpaio, 836 F.3d
*
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).
1239, 1247 (9th Cir. 2016). We affirm.
The district court properly granted summary judgment on Brooks’ free
exercise claim on the basis of qualified immunity because it would not have been
clear to every reasonable official that it was unlawful to require Brooks to fill out a
Faith Group Affiliation Declaration form in order to reinstate his participation in
the Common Fare diet after Brooks’ voluntary withdrawal. See Ashcroft v. al-
Kidd, 563 U.S. 731, 741 (2011) (discussing qualified immunity and noting that the
right is clearly established only if “every reasonable official would have
understood that what he is doing violates that right.” (citation and internal
quotation marks omitted)); see also Resnick v. Adams, 348 F.3d 763, 769-71 (9th
Cir. 2003) (requiring approval of an application to provide a religious diet does not
unduly burden a prisoner’s right to practice his religion).
The district court properly granted summary judgment on Brooks’ access-to-
court claim for failure to exhaust administrative remedies because Brooks failed to
raise a genuine dispute of material facts as to whether he properly exhausted his
administrative remedies. 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
2 17-15571
merits)” (emphasis, citation, and internal quotation marks omitted)).
We reject as without merit Brooks’ contention that the district court
improperly considered defendants’ evidence in support of summary judgment.
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 17-15571