                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 19 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

GREGORY ANDRE SMITH,                            No. 18-15238

                Plaintiff-Appellant,            D.C. No. 5:16-cv-01269-BLF

 v.
                                                MEMORANDUM*
M. ROENNMANN, Correctional Officer at
S.V.S.P.; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                       for the Northern District of California
                  Beth Labson Freeman, District Judge, Presiding

                           Submitted August 15, 2019**

Before:      Farris, D.W. Nelson, and Trott, Circuit Judges.

      Gregory Andre Smith, a California state prisoner, appeals pro se from the

district court’s summary judgment in his 42 U.S.C. § 1983 action alleging Eighth

Amendment claims. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc) (legal rulings


      *
             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).
on exhaustion); Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004) (summary

judgment). We affirm.

      The district court properly granted summary judgment on Smith’s deliberate

indifference claim against defendant Mack because Smith failed to raise a genuine

dispute of material fact as to whether Mack was deliberately indifferent in treating

plaintiff’s symptoms arising from alleged food contamination. See Toguchi, 391

F.3d at 1057-60 (a prison official is deliberately indifferent only if he or she knows

of and disregards an excessive risk to inmate health; medical malpractice,

negligence, or a difference of opinion concerning the course of treatment does not

amount to deliberate indifference).

      The district court properly granted summary judgment on Smith’s retaliation

claims because Smith failed to exhaust administrative remedies and failed to raise

a genuine dispute of material fact as to whether administrative remedies were

effectively unavailable to him. See Ross v. Blake, 136 S. Ct. 1850, 1858-60 (2016)

(setting forth circumstances when administrative remedies are unavailable);

Woodford v. Ngo, 548 U.S. 81, 90 (2006) (the Prison Litigation Reform Act

requires “proper exhaustion,” which means “using all steps that the agency holds

out, and doing so properly (so that the agency addresses the issues on the merits)”

(citation and internal quotation marks omitted)).




                                          2                                    18-15238
      We do not address Smith’s contentions relating to his claims against

defendants that were resolved in a separate action.

      AFFIRMED.




                                         3                                   18-15238
