                                                                              FILED
                            NOT FOR PUBLICATION                               APR 21 2014

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


KENNETH THUNDERBIRD,                             No. 12-35588

               Plaintiff - Appellant,            D.C. No. 3:08-cv-01404-PK

  v.
                                                 MEMORANDUM*
STATE OF OREGON, Employees,
Agents, Agencies; et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                              for the District of Oregon
                    Paul J. Papak II, Magistrate Judge, Presiding

                             Submitted April 16, 2014**

Before:        GOULD, BERZON, and BEA, Circuit Judges.

       Oregon state prisoner Kenneth Thunderbird appeals pro se from the district

court’s judgment in his 42 U.S.C. § 1983 action alleging deliberate indifference to

his serious medical needs and violations under the Americans with Disabilities Act


          *
             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).
(“ADA”) and the Rehabilitation Act. We have jurisdiction under 28 U.S.C.

§ 1291. We review Thunderbird’s claims de novo. Sapp v. Kimbrell, 623 F.3d

813, 821 (9th Cir. 2010) (failure to exhaust administrative remedies); Douglas v.

Noelle, 567 F.3d 1103, 1106 (9th Cir. 2009) (failure to state a claim); Toguchi v.

Chung, 391 F.3d 1051, 1056 (9th Cir. 2004) (summary judgment). We affirm.

      The district court correctly dismissed as time-barred Thunderbird’s claims

stemming from incidents that occurred more than two years before Thunderbird

filed his action. See Or. Rev. Stat. § 12.110(1) (two-year statute of limitations for

personal injury claims); Noelle, 567 F.3d at 1109 (for § 1983 claims, courts apply

forum state’s statute of limitations for personal injury claims); Pickern v. Holiday

Quality Foods Inc., 293 F.3d 1133, 1137 n.2 (9th Cir. 2002) (for ADA claims,

courts apply the statute of limitations for the most analogous state law); Douglas v.

Cal. Dep’t of Youth Auth., 271 F.3d 812, 823 n.11 (9th Cir. 2001) (same for

Rehabilitation Act claims); Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001)

(discussing continuing violation doctrine).

      The district court properly dismissed Thunderbird’s § 1983 claims for

damages against state agencies or state officials acting in their official capacities

because those claims are barred by the Eleventh Amendment. See Flint v.

Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007) (Eleventh Amendment bars


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§ 1983 damages claims against state officials in their official capacity); Taylor v.

List, 880 F.2d 1040, 1045 (9th Cir. 1989) (Eleventh Amendment immunity applies

to state agencies, including the department of prisons).

       The district court did not err in dismissing Thunderbird’s claims alleging

discrimination regarding his tinted eyeglasses and insulin because Thunderbird did

not exhaust his administrative remedies prior to filing suit. See Woodford v. Ngo,

548 U.S. 81, 93-95 (2006) (holding that “proper exhaustion” is mandatory and

requires adherence to administrative procedural rules).

       The district court properly dismissed Thunderbird’s claim for violation of

his religious rights because Thunderbird did not allege facts in the operative

second amended complaint showing that defendants’ actions substantially

burdened his ability to practice his religion. See Shakur v. Schriro, 514 F.3d 878,

884-85 (9th Cir. 2008) (First Amendment’s Free Exercise Clause is only

implicated when a prison practice burdens a prisoner’s sincerely-held religious

beliefs); Warsoldier v. Woodford, 418 F.3d 989, 994-95 (9th Cir. 2005) (under the

Religious Land Use and Institutionalized Persons Act, prisoner must show that the

challenged policy imposes a substantial burden on the exercise of his religious

beliefs).

       The district court properly granted summary judgment on Thunderbird’s


                                          -3-
deliberate indifference claims because Thunderbird did not raise a genuine dispute

of material fact as to whether defendant Dr. Gulick consciously disregarded a

serious risk of harm to Thunderbird’s health by (1) adjusting his medications, (2)

denying his request to wear sweat pants, or (3) removing his authorization for

tinted eyeglasses. See Toguchi, 391 F.3d at 1057-58 (discussing deliberate

indifference standard and noting that a difference in opinion concerning the

appropriate course of treatment does not amount to deliberate indifference).

      Thunderbird’s contentions regarding discovery and service are unpersuasive.

      We do not consider Thunderbird’s remaining contentions because they were

not specifically raised and argued in his opening brief. See Padgett v. Wright, 587

F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

      We deny Thunderbird’s November 12, 2013 motion for joinder of parties

and claims.

      AFFIRMED.




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