                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 19 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ALBERT HAYES,                                   No. 17-16653

                Plaintiff-Appellant,            D.C. No. 1:16-cv-01235-AWI-MJS

 v.
                                                MEMORANDUM*
M. VOONG, Acting Chief Inmate Appeal
Officer; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Eastern District of California
                   Anthony W. Ishii, District Judge, Presiding

                           Submitted January 16, 2018**

Before:      REINHARDT, TROTT, and HURWITZ, Circuit Judges.

      California state prisoner Albert Hayes appeals pro se from the district court’s

judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional and

statutory claims in connection with the processing of his administrative grievances.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for


      *
             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).
failure to state a claim under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443,

447 (9th Cir. 2000). We affirm.

      The district court properly dismissed Hayes’ Americans with Disabilities

Act (“ADA”) and Rehabilitation Act (“RA”) claims against defendants in their

individual capacities because Title II of the ADA and Section 504 of the RA do not

authorize claims against State officials in their individual capacities. See Vinson v.

Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002) (holding that “a plaintiff cannot

bring an action under 42 U.S.C. § 1983 against a State official in her individual

capacity to vindicate rights created by Title II of the ADA or section 504 of the

Rehabilitation Act”).

      The district court properly dismissed Hayes’ ADA and RA claims against

defendants in their official capacities because Hayes failed to identify in his Third

Amended Complaint a policy or custom of the State that allegedly violated federal

law. See Hafer v. Melo, 502 U.S. 21, 25 (1991) (“Because the real party in interest

in an official-capacity suit is the governmental entity and not the named official,

the entity’s policy or custom must have played a part in the violation of federal

law.” (citation and internal quotation marks omitted)).

      The district court did not abuse its discretion by denying Hayes leave to file

a Fourth Amended Complaint because further amendment would be futile. See

Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011)


                                          2                                    17-16653
(setting forth standard of review and explaining that dismissal without leave to

amend is proper when amendment would be futile); Chodos v. West Publ’g Co.,

292 F.3d 992, 1003 (9th Cir. 2002) (“[W]hen a district court has already granted a

plaintiff leave to amend, its discretion in deciding subsequent motions to amend is

particularly broad.” (citation and internal quotation marks omitted)).

      The district court did not abuse its discretion by denying Hayes’ motions for

appointment of counsel because Hayes failed to demonstrate exceptional

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

forth standard of review and requirements 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).

      AFFIRMED.




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