Gregory Lee Gray v. D. Bright;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY LEE GRAY,
Plaintiff-Appellant,
v.
D. BRIGHT; et al.,
Defendants-Appellees.
No. 18-16806
D.C. No. 3:15-cv-03277-RS
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Submitted July 15, 2019**
Before: SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.
California state prisoner Gregory Lee Gray appeals pro se from the district
court’s summary judgment and dismissal order in his action alleging federal claims
arising out of the denial of his request for a single cell. We have jurisdiction under
28 U.S.C. § 1291. We review de novo. Mendoza v. The Roman Catholic
* 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).
FILED
JUL 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Archbishop of L.A., 824 F.3d 1148, 1149 (9th Cir. 2016) (summary judgment);
Hamilton v. Brown, 630 F.3d 889, 892 (9th Cir. 2011) (dismissal under 28 U.S.C.
§ 1915A). We affirm.
The district court properly granted summary judgment on Gray’s medical
deliberate indifference claim because, even assuming Gray properly exhausted his
administrative remedies, Gray failed to raise a genuine dispute of material fact as
to whether defendants were deliberately indifferent in treating his snoring by not
giving him a single cell. See Toguchi v. Chung, 391 F.3d 1051, 1057-60 (9th Cir.
2004) (a prison official is deliberately indifferent only if he or she knows of and
disregards an excessive risk to inmate health).
The district court properly granted summary judgment on Gray’s Americans
with Disabilities Act (“ADA”) failure-to-accommodate claim because Gray failed
to raise a genuine dispute of material fact as to whether defendants discriminated
against him because of his disability. See Simmons v. Navajo County, Ariz., 609
F.3d 1011, 1021-22 (9th Cir. 2011) (discussing elements of a failure-to-
accommodate claim under ADA), overruled on other grounds by Castro v. County
of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc).
The district court properly dismissed Gray’s failure-to-protect claim because
Gray failed to allege facts sufficient to show that the denial of Gray’s request for a
single cell posed a substantial risk of serious harm that defendants knew of and

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disregarded. See Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074
(9th Cir. 2013) (elements of a failure-to-protect claim).
We do not consider 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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