Gregory Andre Smith v. M. ROENNMANN, Correctional Officer at S.V.S.P.;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY ANDRE SMITH,
Plaintiff-Appellant,
v.
M. ROENNMANN, Correctional Officer at
S.V.S.P.; et al.,
Defendants-Appellees.
No. 18-15238
D.C. No. 5:16-cv-01269-BLF
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Beth Labson Freeman, District Judge, Presiding
Submitted August 15, 2019**
Before: Farris, D.W. Nelson, and Trott, Circuit Judges.
Gregory Andre Smith, a California state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging Eighth
Amendment claims. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc) (legal rulings
* 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
AUG 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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on exhaustion); Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004) (summary
judgment). We affirm.
The district court properly granted summary judgment on Smith’s deliberate
indifference claim against defendant Mack because Smith failed to raise a genuine
dispute of material fact as to whether Mack was deliberately indifferent in treating
plaintiff’s symptoms arising from alleged food contamination. See Toguchi, 391
F.3d at 1057-60 (a prison official is deliberately indifferent only if he or she knows
of and disregards an excessive risk to inmate health; medical malpractice,
negligence, or a difference of opinion concerning the course of treatment does not
amount to deliberate indifference).
The district court properly granted summary judgment on Smith’s retaliation
claims because Smith failed to exhaust administrative remedies and failed to 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)
(setting forth circumstances when administrative remedies are unavailable);
Woodford v. Ngo, 548 U.S. 81, 90 (2006) (the Prison Litigation Reform Act
requires “proper exhaustion,” which means “using all steps that the agency holds
out, and doing so properly (so that the agency addresses the issues on the merits)”
(citation and internal quotation marks omitted)).

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We do not address Smith’s contentions relating to his claims against
defendants that were resolved in a separate action.
AFFIRMED.

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