                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        OCT 26 2018
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JOHN CLINT DRAPER,                              No. 17-16950

                Plaintiff-Appellant,            D.C. No. 2:16-cv-01917-GEB-CKD

 v.
                                                MEMORANDUM*
A. GARCIA,

                Defendant-Appellee.

                   Appeal from the United States District Court
                       for the Eastern District of California
                  Garland E. Burrell, Jr., District Judge, Presiding

                           Submitted October 22, 2018**

Before:      SILVERMAN, GRABER, and GOULD, Circuit Judges.

      California state prisoner John Clint Draper appeals pro se from the district

court’s summary judgment for failure to exhaust administrative remedies in his 42

U.S.C. § 1983 action alleging Eighth Amendment violations. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo. Williams v. Paramo, 775 F.3d 1182,



      *
             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).
1191 (9th Cir. 2015). We affirm.

      The district court properly granted summary judgment because Draper did

not exhaust his administrative remedies or 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) (describing the limited

circumstances under which administrative remedies are deemed unavailable);

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 merits).” (citation, internal quotation

marks, and emphasis omitted)).

      The district court did not abuse its discretion by granting summary judgment

without allowing Draper to conduct additional discovery because Draper failed to

show what material facts would have been discovered that would have precluded

summary judgment. See Klingele v. Eikenberry, 849 F.2d 409, 412 (9th Cir. 1988)

(setting forth standard of review and recognizing that “[t]he burden is on the

nonmoving party . . . to show what material facts would be discovered that would

preclude summary judgment”).

      We reject as without merit Draper’s contentions that the district court denied

him due process and equal protection.

      We do not consider arguments and allegations raised for the first time on


                                          2                                      17-16950
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      Draper’s requests to augment the record, set forth in his opening brief, and

for appointment of counsel, set forth in his reply brief, are denied.

      AFFIRMED.




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