                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        OCT 4 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

STEPHEN L. FARRAR,                              No. 16-35496

                Plaintiff-Appellant,            D.C. No. 6:15-cv-01935-KI

 v.
                                                MEMORANDUM*
COLETTE PETERS, director of O.D.O.C.;
et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                            for the District of Oregon
                     Garr M. King, District Judge, Presiding

                          Submitted September 21, 2017**

Before:      SCHROEDER, HAWKINS, and N.R. SMITH, Circuit Judges.

      Oregon state prisoner Stephen L. Farrar appeals pro se from the district

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

indifference to his serious medical needs and due process violations. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Williams v. Paramo,


      *
             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).
775 F.3d 1182, 1191 (9th Cir. 2015) (failure to exhaust administrative remedies);

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

affirm.

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

indifference claims because Farrar did not properly exhaust all steps of the

grievance process, and he did not show that administrative remedies were

effectively unavailable to him. See Woodford v. Ngo, 548 U.S. 81, 90 (2006)

(exhaustion requires that an inmate must use “all steps that the agency holds out,

and [do] so properly” (citation and internal quotation marks omitted)); Vaden v.

Summerhill, 449 F.3d 1047, 1150-51 (9th Cir. 2006) (prisoner did not exhaust his

administrative remedies because he sent his complaint to the district court while

his inmate appeal was still pending).

      The district court properly granted summary judgment on Farrar’s due

process claim because, even assuming a protected liberty interest, Farrar failed to

raise a genuine dispute of material fact as to whether defendants violated his due

process rights. See Superintendent v. Hill, 472 U.S. 445, 455 (1985) (requirements

of due process are satisfied if “some evidence” supports disciplinary decision);

Wolff v. McDonnell, 418 U.S. 539, 563-70 (1974) (setting forth due process

requirements for prison disciplinary proceedings).

      Contrary to Farrar’s contention, the district court did not err in refusing to


                                          2                                     16-35496
enter a stay. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002)

(rejecting appellant’s argument that “the court should have entered a stay that

would have provided an opportunity for exhaustion” because “dismissal is required

under 42 U.S.C. 1997e(a)”).

      The district court did not abuse its discretion in denying Farrar’s motion for

appointment of counsel because Farrar did not demonstrate “exceptional

circumstances.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting forth

standard of review and requirement of “exceptional circumstances” for

appointment of counsel).

      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).

      We do not consider documents and facts not presented to the district court.

United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not

presented to the district court are not part of the record on appeal.”).

      AFFIRMED.




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